Plaintiff 1 and five others (Law Firm Squa, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Yangcheon-gu Seoul Metropolitan Government (Attorney Go Young-deok, Counsel for the defendant-appellant)

may 3, 2006

Seoul Administrative Court Decision 2003Guhap23820 decided June 3, 2005

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiffs an amount calculated by applying the ratio of 5% per annum from July 16, 2003 to June 3, 2005, and 20% per annum from the next day to the day of full payment, to each of the above amounts.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The reasons why a party member should explain this case are as follows, except for the addition of the following judgments as to the matters newly asserted by the defendant in the trial, and therefore, the reasoning for the decision of the court of the first instance is citing it as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

2. Additional matters to be determined;

A. The defendant's assertion

(1) Each of the instant lands is 51% or more of its standing timber capital, so it is impossible to obtain permission for development activities pursuant to attached Table 1-1(a)(3)(a) of the Seoul Metropolitan Government Ordinance on Urban Planning. Such restrictions on development are not taken into account by the first instance court even though it is not necessarily taken into account the factors, other than individual factors, such as the land-to-land conditions or other conditions under Article 17(1), (6)1, and 4 of the Rules on Appraisal and Assessment, and the main sentence of Article 16(1)1, and Article 23(2)3 of the Guidelines on Land Compensation Evaluation.

(2) The appraisal report of the first instance court was based on the premise that each of the instant lands can be developed as an apartment site.

(3) Each of the instant lands is not a developed land but a forest, the preservation of which is irrelevant to the increase of value due to the mining area. In ordinary land is a mine area, the land actually developed should be divided into roads, etc., and thus, the land actually developed should be reduced, and the appraisal by the first instance court, even though its reduction is a factor, is deemed an aggravated factor.

(4) Although it is impossible to develop each of the instant land in the first appraisal report, there were errors by preparing and appraising a false service report according to a false business plan as if it were possible to develop the land.

(5) According to the provisions of Article 15(2) and (3) of the Land Appraisal Guidelines, the difference in the rate of land price has occurred depending on the difference in the land category, slope, elevation, and current status of use (land use), and such conditions are irrelevant to possible and impossible. According to the land price ratification schedule established by the Ministry of Construction and Transportation, each land of this case, the land category of which is forest land, is 0.74, compared to the comparison standard of land category, is 0.35, compared to the comparison standard of land category, and the situation of use is 0.259 when compared to the comparison standard of land in which the land category is a detached land. However, without any reasonable reason, the difference in the conditions of demarcated land is 1.25, considering each of the land of this case as being superior to the standard land classification of the mineral area without any reasonable reason, the entire difference in the rate of land size multiplied by 0.38,000 by applying it to the shape, elevation, etc., and the situation is not reflected.

(6) The first instance court’s appraisal did not properly take into account the case of compensation evaluation.

B. Determination

(1) As to the allegation Nos. 1 through 4

(A) The Defendant’s above assertion is based on the premise that the appraisal report of the first instance court of this case, even though it is impossible to develop each of the lands of this case by law, has caused a mistake, such as assessing the value on the premise that the development is possible, and not reflecting the development restrictions in other factors. Thus, it is based on the premise of why each of the lands of this case is undeveloped in the appraisal.

(B) Under Article 23(1) and (2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, the land whose specific use area or specific use district, etc. has been altered for the purpose of the implementation of the pertinent public works shall be appraised on the basis of the specific use area or specific use district, etc. before the alteration. Each of the instant land was originally a general residential area, but the Seoul Urban Planning Park was decided to modify the Seoul Urban Planning Park under the Ordinance No. 138 of the Ministry of Construction on July 9, 197 (the Seoul Urban Planning Park was newly established under the Ordinance No. 465 of the Ministry of Construction on August 6, 197, but the cadastral approval was not publicly notified as of October 28, 196). Since the specific use area was altered to a natural green area as of January 22, 197. Since the designation of the above Seoul Urban Planning Planning and the alteration of the use area and the development project for neighboring village of this case, each of the instant parks shall be considered as the Seoul Urban Park.

(C) In addition, considering the overall purport of the pleading as a result of the first instance court appraisal of Eul evidence 23-1 to 4 and the first instance court appraisal, if each of the lands of this case was developed as a residential complex around 1972 by the first public notice of Construction Division No. 465, but only some of the lands around each of the lands of this case was developed as a residential complex, but thereafter, the apartment complex was formed after the fact that each of the lands of this case was now surrounded by a residential area and apartment complex. On the other hand, each of the lands of this case is recognized to have been developed as a residential complex in view of the surrounding development situation, if each of the lands of this case was designated as an urban planning facility (park) on August 6, 1971, and development of trees was restricted after all development activities were decided as an first urban planning facility (park). In light of these circumstances, if development was not restricted, it is sufficient to conclude that each of the lands of this case was developed as a residential complex.

Nevertheless, the defendant's assertion that in addition to the property rights of the plaintiffs in the past are restricted by the designation of a park site, they should be based on unreasonable criteria or reflect the state of standing timber, which is the result of low-water development restriction, on the premise of the above compensation evaluation, on the premise of the above-mentioned standing timber capital, is contrary to the legislative intent of the Act on the Acquisition of Land, etc.

(D) Therefore, the Defendant’s assertion on the premise that each of the instant lands is inappropriate for development, is based on the present shape of each of the instant lands, and as long as the instant court maintains the principle of evaluation premised on the original state without considering any limitation on the principle of compensation evaluation, it is without merit to further determine the remainder.

(2) As to the fifth argument

(A) The standard comparison table (land price ratification table) concerning the factors of land price formation prepared and provided by the Minister of Construction and Transportation to the relevant administrative agencies is provided as data to calculate individual land price. Since it is not a standard for calculating the amount of compensation pursuant to land expropriation, it is merely a basis for calculating the amount of compensation pursuant to the land expropriation, but is merely

(B) In addition, although the land category of this case is a forest and field, it is reasonable to evaluate the land category of this case based on the general residential area which is the original state prior to the change of use as seen earlier, it cannot be caused by the reason that the land category was not reflected in the ratification rate based on the land category on the ground that it is forest and field. Moreover, the appraiser of the first instance court analyzed the factors leading to the increase in the mining area based on the officially announced standard land price of Yangcheon-gu, and reflected 25% only from the remuneration point of view (1.25) in terms of the increase in value due to the difference between the size of comparison standard land and the standard land area. Since the size, area of each land of this case, border area, depth, shape, bearing, elevation, elevation, and sloping road, etc. of this case is deemed as significantly high to 0.38 degrees compared with the standard land price, it is not reasonable as the defendant's assertion is without merit. Thus, the defendant's above assertion is also without merit.

(3) As to the sixth argument

(A) Since the relevant provisions, such as Article 70(1) of the Public Works Act do not necessarily stipulate the normal market price of similar land in neighboring areas or the compensation preference, etc. as the factors to be considered in calculating the amount of compensation, it is not necessarily necessary to investigate and consider them. However, in cases where there are cases where neighboring similar land has been traded or a compensation has been made, and where it is proved that the price may affect the adequate assessment of compensation due to its normal circumstances, it is reasonable to take this into account (see Supreme Court Decision 99Du7968, Mar. 27, 2001, etc.).

(B) According to the appraisal report of the first instance court, it seems reasonable to calculate the other factors by 1.2 by taking into account the compensation evaluation case (2 cases) of the land, the category of which is similar to each land of this case, as forest, school, or public land, the development of which was restricted, as forest, school, or public land, and there is no other evidence to acknowledge that there was any error (the record of the evidence No. 38 alone is insufficient to recognize that the compensation case, etc. of the Defendant’

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment Table 1]

Judges Lee Sung-ho (Presiding Judge)