Plaintiff 1 and four others (Law Firm Uniform, Attorneys Gyeong-he et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Tae-ju, Counsel for defendant-appellant)

August 31, 2017

Suwon District Court Decision 2015Guhap68803 Decided May 11, 2017

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below is revoked, and the plaintiffs' claim corresponding to the revoked part is dismissed

The Defendant shall pay to Plaintiff 1 KRW 7,017,00, KRW 5,372,00 to Plaintiff 2 (Plaintiff 2), KRW 84,144,00 to Plaintiff 3 (Plaintiff 3), KRW 24,880,00 to Plaintiff 4 (Plaintiff 4), KRW 6,768,00 to Plaintiff 5 (Plaintiff 5: Plaintiff 5), and KRW 5% per annum from March 4, 2014 to October 19, 2017; and KRW 15% per annum from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. The costs of appraisal among the total costs of litigation shall be borne by the defendant, and the remainder shall be borne respectively by the defendant.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

1. Purport of claim

① The Defendant: (a) from February 3, 2009 to the Plaintiff 1; (b) from November 7, 2008 to the Plaintiff 2; (c) from November 12, 2008 to the Plaintiff 3; (b) from November 12, 2008 to the 123,138,000 won; (b) from July 8, 2010 to the 89,946,000 won; and (c) from March 14, 2009 to the Plaintiff 4 with respect to the amount of KRW 11,280,000 to the Plaintiff 5; and (c) from the date of delivery to the 15th day of each of the instant claims with respect to the amount of KRW 12,30,000 to the Plaintiff 3; and (d) from the date of delivery to the 5th day of each of the instant claims with respect to the amount of KRW 42,465,000; and (d) from the 5th day of each of the instant claims.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the revocation are dismissed.

1. Partial acceptance of the judgment of the first instance

In the reasoning of the judgment of this court, the relevant part of the grounds of the judgment of the court of first instance (from the 11st to the 8th st st son of the judgment of the court of first instance) is the same as that of the relevant part of the grounds of the judgment of the court of first instance (from the 2th 11th to the 8th st son of the judgment of the court of first instance), so the relevant part shall be cited in accordance with Article 8(2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act, in addition to the case where "the last 13th 2013."

2. Parts 2) of dried water

A. Summary of the parties' assertion

1) The plaintiffs' assertion

The shape of the remaining land of this case has changed due to an irregular shape, etc., the efficiency of its use has been diminished, and the condition of capture has deteriorated, such as entering the remaining land due to the national expressway of this case, which is difficult to enter, due to the occurrence of automobile noise, and the environmental condition has deteriorated, and the price of the remaining land of this case has fallen lower than before the implementation of the project of this case. Therefore, the defendant should compensate the plaintiffs for the losses incurred by the price decline of the remaining land of this case.

2) The defendant's assertion

A) The price of the remaining land may not be deemed to have fallen.

B) Since the instant motorway was established through a public-private partnership project under the Act on Private Participation in Infrastructure (hereinafter “Private Investment Act”), the Defendant is not a project operator, and the Defendant is not a project operator, and thus, the Defendant cannot be deemed to be liable to compensate for the remaining land pursuant to Article 73(1) of the former Land Compensation Act.

B. Determination

1) Whether the price of the remaining land of this case has fallen

A) Relevant legal principles

According to Article 73(1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and Article 32(1) of the Enforcement Rule of the same Act, a project operator shall compensate for the loss of the remaining land if the price of the remaining land is reduced due to the acquisition of part of a group of land belonging to the same landowner, and the loss shall be the amount calculated by subtracting the price of the remaining land after incorporation into the public works execution zone from the price of the remaining land before being transferred to the public works execution

B) Whether the price of the remaining land of this case has fallen and its amount

In the event that each appraisal and each appraisal and each appraisal and each appraisal and each appraisal and each appraisal and each appraisal and each appraisal and appraisal and each appraisal and appraisal of the court are not illegal in the appraisal methods, and there are different opinions in the appraisal methods, but there are different differences in the appraisal results due to a somewhat different relationship between the comparison of goods and services, even if there is no evidence to recognize that there is an error in the comparison of goods and services among them, more trust in any one of them is within the discretion of the court.

According to the appraisal by the court of first instance, the appraisal by the court of first instance on the non-party, the appraisal by the appraisal by the court of first instance, the appraisal by the appraisal by the court of appraisal, and the fact-finding by the non-party, it seems that both the appraisal by the court of first instance and the court appraisal by the appraisal by the relevant laws and regulations can be evaluated legally as to whether the price has been reduced and the reduced amount has been reduced. However, the court of first instance should adopt the appraisal by the court of first instance, which appears to reflect more specific and appropriate individual factors, such as the access conditions, natural conditions, conditions of catch, conditions of land, and other conditions of the remaining land in this case, and the inquiry by the non-party (hereinafter referred to as the "court appraisal") (However, the compensation amount for losses for the remaining land should be calculated according to the current state at the time of expropriation or the acquisition by consultation, but the court appraisal by considering the reference point at the time of the remaining land acquired by consultation as the date of ownership transfer registration, and the reference point at the remaining land

According to the court's appraisal, the price reduction of the remaining land of this case is the amount corresponding to the following "price reduction".

1. Plaintiff 1. Plaintiff 1. 7,017,00 won (number 1 omitted) 7,017,00 won (number 2 omitted) 1,930,000 won (number 3 omitted) 3,442,00 won (number 4 omitted) 3,48,00 won (number 4 omitted) 3,48,00 won (number 4 omitted) 23,148,00 won in △△-ri (number 5 omitted) 19,512,00 won in △△-ri (number 6 omitted) 19,512,00 won in △△-ri (number 7 omitted), △△-ri (number 8 omitted), △△-ri (number 30,41,484,000 won (number 1 omitted), 00,000 won (number 30,508,136,508,000 won) 4, 1,5,5008.

Note 3) specify the remaining land as ○○○ and a number of pages.

2) Whether the Defendant should compensate for losses arising from the price decline in the remaining land of this case

With respect to losses caused by the reduction in the price of the remaining land of this case, the defendant is liable for compensation in light of the following points. Therefore, this part of the defendant's assertion is not correct.

A) Article 2 subparag. 7 and Article 20(3) of the Private Investment Act provides that a corporation that conducts a private investment project after being designated as a project implementer pursuant to the Private Investment Act may entrust the competent authority, etc. with the execution of land purchase compensation, compensation for losses, relocation measures, etc. (Article 2 subparag. 7 and Article 20(3) of the Private Investment Act). The “Public Notice of Approval of Private Investment Project Implementation Plan (Public Notice No. 2008-14) announced by the Minister of Land, Transport and Maritime Affairs on Mar. 28, 2008” refers to the Defendant’s execution of the “land compensation-related business.”

B) The “project operator” under the Land Compensation Act is a person who performs the public works (Article 2 subparag. 3). The Land Compensation Act provides for “project for which land, etc. may be expropriated or used in accordance with the Acts prescribed in the attached Table” as a type of the public works (Article 4 subparag. 8) and Article 4 subparag. 8 of the same Act provides for “public works” as one of the public works (attached Table). As such, a public-private partnership project under the Public-Private Partnerships Act is included in “project operator” as provided in the Land Compensation Act.

C) The main text of Article 73(1) of the former Land Compensation Act provides, “If the price of the remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same owner, or if it is necessary to build a passage, ditch, fence, etc. or to construct other construction works on the remaining land, the project operator shall compensate for such losses or construction expenses, as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport.” It is only stipulated that a project operator for a public project recognized as a public project pursuant to the Land Compensation Act should compensate for losses incurred on the remaining land, and it is not stipulated that only a corporation, etc. recognized as a project operator pursuant to the Act stipulated in subparagraph 8 of Article 4

3) Sub-decisions

The defendant is a reasonable compensation for losses due to the decrease in the price of the remaining land of this case. ① 7,017,00 won for the plaintiff 1, ② 5,372,00 won for the plaintiff 2, ③ 84,14,000 won for the plaintiff 3, ④ 24,880,000 won for the plaintiff 4, ⑤ 6,768,000 won for the plaintiff 5, and each of the above amounts, from March 4, 2014 [the plaintiff claimed damages from the day after the part of the land of this case was acquired through consultation or expropriated, but the compensation for losses from the day following the date of the fulfillment of the obligation under Article 73(2) of the former Land Compensation Act shall be deemed to have accrued from the day following the day of the claim for performance under Article 387(2) of the Civil Act until the day of performance of the obligation to compensate for losses from the day of 15% annual payment of damages until the day of 2015.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no ground. Since the part against the defendant who ordered payment in excess of the above recognition amount among the judgment of the first instance that partially different conclusions is unfair, it is revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed. The defendant's remaining appeal is dismissed as

Judges Kim Jong-ju (Presiding Judge)

1) In the statement of grounds of appeal submitted to this court, the Defendant asserts that “The initial date of paying delay damages is reasonable to apply Article 387(2) of the Civil Act mutatis mutandis. As such, the Defendant’s delayed liability against delay damages shall be deemed to have arisen from March 4, 2014, the following day after the Plaintiffs demanded the Defendant to compensate for losses” (fourth), and that the fact that the Defendant received the content-certified mail (Evidence A No. 8) on the same day on March 3, 2014, stating the Plaintiffs’ declaration of intent to compensate for losses.

Note 2) The 8th 10th 10th son of the judgment of the first instance.

Note 3) is identified as ○○○○ and a number of pages, but only.