208Na6671 Opening as an access road for land cultivation and compensation therefor.

Park O

Daegu

Korea Water Resources Corporation

Daejeon Daejeon Woo-dong, Daejeon san 6-2

Representative, President Park Gin-ho

Attorney Ansan-○, Counsel for the defendant-appellant

Daegu District Court Decision 2007Gahap1637 Decided July 25, 2008

January 15, 2009

February 5, 2009

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The defendant shall pay to the plaintiff 49,00,000 won with 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 5,900,000 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts can be acknowledged if there is no dispute between the parties, or if Gap evidence 1-4, Eul evidence 5-5, 6, Eul evidence 6-5, Eul evidence 7-1 through 10, and Gap evidence 4-1 through 4 on December 3, 12-12.

A. The Ansan Dam is a multi-purpose dam constructed to supply the living and industrial water of the main stream of the Nakdong River, the main stream of the river, and the neighboring cities, and to reduce flood damage, which was commenced around April 1971 and completed around October 1976.

B. The defendant is a corporation established under the Korea Water Resources Corporation Act (amended by Act No. 3997 of Dec. 4, 1987), which has been entrusted with the management of the Ansan Dam by the State, and has been under management until now.

C. Meanwhile, on October 10, 1979, on the other hand, the Plaintiff’s father Park △△△△△, purchased and cultivated the following: (a) on October 10, 1979, he purchased and cultivated the 1,408m square meters in Ansan-si, 582, the Mari-ri, 533m, the 833m square meters in the same Ri, 218m in the same Ri, 123m in the same Ri, and 1,425m in each of the instant lands (hereinafter “each of the instant lands”); and (b) donated each of the instant lands to the Defendant on January 18, 197; and (c) each of the instant lands is located in the mountain village of approximately 20 to 50m radius in the outer boundary of Ansan-dong Dam.

D. At the time of the construction of the Ansan Dam, the State implemented relocation measures, etc., along with compensation for losses, for persons living in the flood area, and, in particular, for the land or remaining land which may interfere with cultivation due to flood, paid a certain standard of compensation at the request of the person eligible for compensation, and set up the farm roads and passage roads for smooth passage of residents.

E. From November 2004, the Plaintiff filed a civil petition with the Defendant to demand the Defendant to open up a road and compensate for damages on each of the instant land several occasions. Since the Defendant’s construction of a road is under the jurisdiction of a local government, the Defendant notified the Plaintiff’s civil petition to the Plaintiff and requested cooperation for the construction of a road, but the Defendant respondeded to the effect that a separate compensation for damages on each of the instant land is possible.

2. Judgment on the plaintiff's claim

A. The plaintiff's assertion

(1) Before the construction of the Ansan Dam, the Plaintiff resided with his parents in Ansan-si, the Magdong-si, the area of each of the instant land, and obtained a considerable agricultural income by cultivating the Bouri, Hagh, and bean, etc. on each of the instant land, while cultivating his parents in the Magdong-si, the Magdong-si, the area of the instant land is located.

However, due to the construction of Andong Dam, the existing access road leading to the plaintiff's family's house and each land of this case was also submerged.In addition, the construction of Andong Dam has not been constructed as a substitute road on which the farming machinery, etc. can enter each land of this case until more than 30 years have passed after the construction of Andong Dam.

(2) Accordingly, the Plaintiff’s family members came to walk up the farming materials, etc. on the shoulder, leading to the passage of a mountain village without any way. In particular, the Plaintiff’s family members suffered a lot of difficulties in land cultivation due to the increase of water level of the Andong Dam on the summer, and due to such poor Dong-dong environment, the Plaintiff’s growth in crops and the Plaintiff’s parents’ health deterioration, making it difficult to do so. Furthermore, the Plaintiff’s plans for planting the lost trees on each of the instant lands, but failed to implement them due to the lack of access roads, and eventually, each of the instant lands became de facto yellow.

(3) Meanwhile, pursuant to Article 43 of the Act on Construction of Dams and Assistance, etc. to their Environs, the Defendant is obligated to improve the underdeveloped living environment in areas adjacent to dams and actively endeavor to increase the income of local residents and promote their welfare, etc.

However, due to the Ansan Dam managed by the Defendant, the passage to enter each land of this case owned by the Plaintiff was set off, and the Defendant did not open access roads to each land of this case to be performed as part of the projects for increasing local residents' profit pursuant to the Act on the Support for Dam Environs.

(4) Therefore, inasmuch as the Plaintiff and the Plaintiff’s parents suffered a considerable mental suffering as well as property damage caused by the Defendant’s tort, the Defendant is obligated to pay to the Plaintiff the sum totaling KRW 49 million equivalent to the amount of farming loss and consolation money, and delay damages therefrom.

(b) Details of relevant statutes;

According to the provisions of Article 43(1) of the Dam Environs Support Act, in order to increase the income of residents in dam environs as prescribed by the Presidential Decree after the construction of a dam is completed, the dam management agency or the dam custodian shall establish a comprehensive catch each year as prescribed by the Presidential Decree in order to promote the increase of the income of residents in dam environs and the promotion of welfare, etc. In addition, according to the provisions of Article 40(2), (4) and attached Table 7 of the Enforcement Decree of the Act, the projects for supporting dam environs are divided into the regional support projects implemented by the head of the competent Si/Gun/Gu or the resident support projects and other projects implemented by the dam management agency or the dam custodian. Of the regional support projects, the projects include the "joint farming facilities, farming equipment repair facilities." The projects related to agriculture, forestry and fisheries, such as the product storage facilities, farming roads, agricultural water, and agricultural water pumping stations, among the projects for supporting residents.

C. The judgment of this Court

(1) In order for the Defendant to be liable for damages, it should be recognized that the Defendant, the dam custodian, was legally obligated to open and maintain a farm road so that agricultural machinery, etc. can enter each land of the instant case owned by the Plaintiff located in the dam owner area.

However, as long as an implementer of a project to increase income to establish and implement a plan for building a farm road to enter into farmland in dam environs under related Acts and subordinate statutes, such as the Act on Assistance to Dam Environs, is the head of a Si/Gun/Gu under his/her jurisdiction, the Defendant, who is the dam custodian, is only obligated to establish and implement a plan for supporting residents and other supporting projects among the projects for supporting dam environs, and the Defendant, who is the dam custodian, is merely obligated to establish and implement a plan for supporting residents and other supporting projects, and it is not subject to the statutory obligation to

(2) Even if the Defendant’s resident support project and other support project are to be established and implemented pursuant to the Act on the Support for Dam Environs, it is deemed that the said project includes the establishment of a farm road in the area adjacent to the dam, and the said Act merely appears to be a system prepared by the State as part of compensation for disadvantages suffered by the residents in the relevant area due to restrictions on the construction, management, etc. of the dam, and further, it is difficult to interpret it as a provision guaranteeing specific and direct rights to require the Defendant or the competent administrative agency to implement the said support project.

(3) Meanwhile, in light of the evidence revealed in the facts and the purport of the entire theory of the fact-finding on the Kandong Dam, the State provided indirect damages to the land surrounded by the mountainous district and the river due to the construction of the Ansandong Dam. The owner of each of the land of this case did not file an application for indirect damages at the time of the construction of the Ansandong Dam. ② The Plaintiff’s father’s father’s gambs, which was completed on October 10, 1976, cultivated each of the land of this case until the middle half of the 1990s and donated it to the Plaintiff on January 18, 199. ③ The Plaintiff was unable to cultivate the land of this case due to the purchase and acquisition of the land of this case or the fact-finding of the land of this case to the Plaintiff on January 18, 1997, and it was difficult for the Plaintiff to grow the land of this case to the extent that it was actually possible for the Plaintiff to use the land of this case for the same three previous years.

(4) Therefore, we cannot accept the Plaintiff’s assertion without any need to further examine the remainder of the issue, including the scope of compensation for damages.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed due to the lack of grounds, and the decision of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.

(Presiding Judge)

Park Jong-young

Han Jae-in