[1] Whether a lawsuit concerning the right to claim for compensation for agricultural loss under Article 77(2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall be governed by the administrative litigation procedure (affirmative), and whether a person who suffered agricultural loss due to a public work project operator should undergo the adjudication procedure in order to receive compensation under the said provision (affirmative)

[2] In a case where Gap et al. claimed compensation for agricultural loss under Article 77 (2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects against a project executor on the ground that each land which he cultivated was expropriated for public works, the case reversing the judgment of the court below which rejected Gap et al.'s claim for compensation for agricultural loss without examining at all whether Gap et al. had gone through the adjudication procedure

[1] Article 7(2) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 8665, Oct. 17, 2007; hereinafter “former Public Works Act”) provides that “The compensation shall be made by considering the income, etc. per unit area of farmland for agricultural losses” (Article 7(4) of the same Act provides that “The detailed calculation of the compensation amount under the provisions of paragraphs (1) through (3) of the same Article and the criteria for compensation shall be prescribed by the Ordinance of the Ministry of Construction and Transportation.” Accordingly, the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Ordinance No. 556, Apr. 12, 2007); Article 7(2) of the former Public Works Act provides that “The compensation amount shall be determined by considering the income, etc. per unit area of farmland for agricultural losses; Article 87(3) of the former Public Works Act, which provides that the person who is dissatisfied with the above provisions, in civil action, thereby, shall be held by public works.

[2] In a case where Gap et al. claimed a compensation for agricultural loss for the above crops under Article 77 (2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007; hereinafter "former Public Works Act"), on the ground that each land which he had cultivated was expropriated for public works, the case holding that the court below erred in the misapprehension of legal principles as to the form of lawsuit in the claim for compensation for agricultural loss, without examining whether the claim for compensation for agricultural loss was due to the party litigation under Articles 83 through 85 of the former Public Works Act, after going through the adjudication procedure under Articles 34 and 50 of the former Public Works Act

[1] Articles 26, 28, 30, 34, 50, 61, 77, 83, 84, and 85 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 8665 of Oct. 17, 2007); Articles 48, 49, and 50 of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 556 of Apr. 12, 2007); Articles 26, 28, 30, 34, 84, 84, and 87, and 50 of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 865 of Oct. 17, 2007); Articles 4, 86, and 57, and 84 of the former Enforcement Rule of the Act on the Acquisition of Land, etc.

Plaintiff 1 and four others (Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Changwon-si (Attorney Jin-si, Counsel for the defendant-appellant)

Busan High Court Decision 2008Na20010 decided May 27, 2009

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal ex officio prior to judgment.

Article 77(2) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “former Public Works Act”) provides that “The compensation shall be made by taking account of the income, etc. per unit area of farmland with respect to any agricultural loss.” Article 77(4) of the same Act provides that “The detailed calculation method and criteria for compensation under the provisions of paragraphs (1) through (3) shall be prescribed by the Ordinance of the Ministry of Construction and Transportation.” Accordingly, the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Ordinance No. 556 of the Ministry of Construction and Transportation of April 12, 2007) provides that the compensation for any agricultural loss (Article 48), the assessment of any loss in livestock industry (Article 49), and the assessment of any loss in sericulturing business (Article 50).

In light of the above provisions, the right to claim for agricultural loss compensation under Article 77 (2) of the former Public Works Act is a kind of right under public law in order to compensate for the loss caused by a legitimate exercise of public authority, such as the implementation of a public service project, in view of the overall equitable burden of compensation for the special sacrifice of the property by the owner of the public service project. Therefore, the relevant dispute must be followed by an administrative litigation procedure, not by a civil litigation. In full view of the above provisions and Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the former Public Works Act, it is reasonable to deem that a person who suffered agricultural loss due to a public service project can receive compensation for agricultural loss pursuant to Article 77 (2) of the former Public Works Act only when he/she is dissatisfied with the adjudication procedure stipulated in Articles 34 and 50 of the former Public Works Act, and then is dissatisfied with the adjudication procedure.

According to the reasoning of the lower judgment and the record, the Plaintiffs, on the ground that each of the instant lands, which were their crops cultivated, was expropriated for the development project of rainfall and fruit trees, which are the instant public works projects, filed a claim for compensation for agricultural damages for the said crops pursuant to Article 77(2) of the former Public Works Act against the Defendant, the executor of the instant public works project.

Therefore, the court below should have deliberated whether the claim for the agricultural loss compensation of this case was made through the party litigation under Articles 83 through 85 of the former Public Works Act after going through the adjudication procedure stipulated in Articles 34 and 50 of the former Public Works Act, etc. However, the court below dealt with the claim for the agricultural loss compensation of this case by the civil procedure without thoroughly examining whether the plaintiffs had gone through the adjudication procedure. In this case, the court below erred by misapprehending the legal principles on the form of the lawsuit claiming the agricultural loss compensation amount, by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)