Plaintiff 1 and one other (Law Firm Cheongam, Attorneys Cho Il-i et al., Counsel for the plaintiff-appellant)

Korea

August 18, 2010

1. The Defendant’s refusal of an application for adjudication against the Plaintiffs on January 6, 2010, regarding the obstacles described in serial numbers 7 through 10 in the attached list of goods in which it owned by the Plaintiffs is revoked.

2. It is confirmed that the Defendant’s failure to file an application for adjudication with the Central Land Expropriation Committee on the obstacles in the serial number 17 through 19 in the attached list of the Plaintiff 1’s list in question is illegal.

3. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Case history

(a) The business and land subject to the instant case;

On November 30, 2006, the Defendant is the executor of the Asan-Yanan River Construction Project (hereinafter “instant project”). Plaintiff 1, who owned 3/4 shares of Plaintiff 1/4, was included in the business area of the said project in the area of the project, on the part of the Sinsan-si, the Sinsan-si, where Plaintiff 2 owns the respective shares of Plaintiff 1/4, the 809 square meters (hereinafter “1 square meters”) and the 182 square meters (number 2 omitted) of Sinsan-ri (hereinafter “2 square meters”) of Sinsan-si, where Plaintiff 1 owns the respective shares of Plaintiff 2.

(b) The progress of negotiations on compensation for losses and the adjudication on expropriation and objection;

(1) After the announcement of the instant project, the Defendant entrusted the Korea Appraisal Board with the consultation on compensation for losses to it, and had the Korea Appraisal Board proceed with the consultation on compensation for losses with the Plaintiffs. Since the Korea Appraisal Board included only the land No. 1 and its ground crops, the land No. 2 and its ground crops, the Plaintiffs asserted that the compensation amount for the land No. 1 and No. 2 was not justified, while filing an objection with the Korea Appraisal Board on December 17, 2007, the Plaintiffs did not evaluate other obstacles, such as agricultural crops, buildings, drainage pipes, etc., and that the compensation amount for the land No. 1 and No. 2 was not justified

(2) As a result, on February 12, 2009, the Central Land Expropriation Committee rendered a ruling of expropriation of the plaintiffs on the premise that only the first and second lands except the obstacles of the plaintiff's assertion are eligible for compensation, with the purport that the compensation for expropriation of the plaintiffs is KRW 525,562,340, and the plaintiff 2 is KRW 175,187,440. The plaintiffs raised an objection to the purport that the second obstacles are eligible for compensation. However, as of June 18, 2009, the Central Land Expropriation Committee did not present an opinion that the compensation for expropriation would be KRW 530,197,080, and KRW 176,732,360 on the premise that only the first and second lands are eligible for compensation for losses. However, the Central Land Expropriation Committee failed to complete the examination of the plaintiffs' assertion that the plaintiffs were the project implementer, and did not complete the examination of the above goods after consultation.

C. Progress of the plaintiffs' claim for compensation

(1) The plaintiffs filed a lawsuit against the defendant seeking the payment of compensation for obstacles as stated in the No. 1 and 2 of the Daejeon District Court 2009Guhap2728, Daejeon District Court 2009, and the increase of compensation for damages for the land No. 1 and 2 of the attached list No. 7 through 28. The above court recognized that obstacles listed in the No. 7 through No. 28 of the attached list No. 9 of Dec. 9, 2009 were not included in the subject of expropriation, and the plaintiffs' objection is not subject to adjudication. According to the provisions of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works (hereinafter "Public Works Act"), the procedure for expropriation or its objection cannot be claimed against the project operator immediately without going through the procedure of adjudication, the lawsuit against the above part was dismissed on the ground that it is unlawful, and the remaining part of the claim for compensation for damages for the land No. 1, 2008 won and damages for delay.

(2) On May 20, 2010, the Plaintiffs were dissatisfied with the above judgment and appealed to Daejeon High Court 2010Nu199, and the purport of the claim was expanded. On May 20, 2010, the above court rendered a ruling that the Defendant shall additionally pay to the Plaintiff 1 KRW 1,621,50, and KRW 540,50 to the Plaintiff 2, and the delay damages thereof became final and conclusive on June 12, 2010.

D. The plaintiffs' claim for adjudication against the defendant and the Central Land Tribunal

(1) On January 4, 2010, the Plaintiffs filed an application for adjudication against the Defendant for adjudication on the obstacles described in [Attachment Nos. 7 through 28] 11 through 16, 20, and 28 in [Attachment List] on January 6, 2010, and the Defendant sent a reply that a separate claim for adjudication can be filed after the expiration of the consultation period for adjudication on the obstacles described in [Attachment] No. 17 or 19 (hereinafter “instant refusal disposition”), because the obstacles described in [Attachment] No. 7 or 10] are not subject to the application for adjudication, and the application for adjudication was rejected (hereinafter “instant refusal disposition”), and as for the obstacles described in the same list No. 17 or 19 (hereinafter “the obstacles in this case”), the separate claim for adjudication for adjudication can be advanced (Evidence No. 14-3, 44, 17 or 19).

(2) In addition, on January 4, 2010, the Plaintiffs filed an application for adjudication identical with that directly filed with the Defendant with the Central Land Expropriation Committee. The Central Land Expropriation Committee, on January 12, 2010, may examine the project implementer’s application for adjudication within the project period. However, the Central Land Expropriation Committee sent reply that the procedure for adjudication cannot be proceeded due to the lack of the Defendant’s application for adjudication.

[Ground of recognition] A without dispute, Gap evidence 1 through Gap evidence 10, Gap evidence 14 through Gap evidence 17 (including each number), the purport of whole pleadings

2. Whether the defendant's refusal disposition and omission with respect to the plaintiff's application for adjudication of acceptance are illegal

A. The parties' assertion

(1) The plaintiffs' assertion

The Plaintiffs did not commence the procedure for consultation on compensation for damages on the ground that the obstacles in this case do not constitute the subject of compensation for losses, while proceeding to compensate for the land and goods incorporated into the project zone of this case, and requested the Central Land Expropriation Committee to apply for adjudication on expropriation of the obstacles in this case on the basis of Article 30(1) of the Public Works Act on around 2009. Thus, the Defendant applied for adjudication on expropriation to the competent Land Expropriation Committee within 60 days from the date on which the Plaintiff requested an application for adjudication on expropriation pursuant to Article 30(2) of the Public Works Act. However, the Defendant rejected the application for adjudication on expropriation of the obstacles in the attached list No. 7 through No. 10, and did not take any measures to ensure that the above period expires with respect to the obstacles in the attached list No. 17 through No. 19. Accordingly, the Defendant’s refusal and omission in the Plaintiff’s application for adjudication on expropriation.

(2) The defendant's main defense

The defendant asserts that the obstacles in this case can not be the object of compensation due to the violation of the Building Act, etc., and the defendant, who is the project implementer, need not proceed with the procedure for calculating the amount of compensation and consultation on compensation, and dispute over whether they are the object of compensation can be resolved separately through civil litigation. Thus, the plaintiffs' lawsuit in this case shall be asserted that the obstacles in the No. 17 through 19 of the annexed list are installed at the time of new construction of the building, and they shall be assessed as a whole with the building. It is sufficient to dispute the rejection disposition against the obstacles in the annexed No. 7 through 10 of the annexed list, and there is no interest to dispute separately.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

The plaintiff's claim on the merits and the defendant's defense on the merits should be seen together.

(1) Articles 28, 30, and 83 through 85 of the Public Works Act stipulate that in order for a landowner or person concerned to receive compensation for losses caused by the expropriation of land, etc. from a project operator, a consultation procedure shall be gone through between the project operator and where consultation does not lead to an agreement or it is impossible to hold consultation, the landowner, etc. shall request the competent land expropriation committee to file an application for the adjudication on expropriation. If there is an objection against the adjudication on expropriation, the landowner, etc. may file an administrative lawsuit or file an application for the adjudication with the Central Land Expropriation Committee within 60 days from the date of receipt of the written adjudication, and if there is an objection against the said adjudication, an administrative litigation may be filed within 30 days from the date of receipt of the said written adjudication.

(2) According to the above provisions, in order to seek compensation for losses against the defendant as a means of administrative litigation for the goods for which the determination of compensation is disputed, the plaintiffs must first receive the adjudication from the competent Land Tribunal, and for this purpose, the defendant, who is the project operator, may exercise the right to request the adjudication of expropriation to the competent Land Tribunal. The project operator who has received the request for adjudication, shall file an application for adjudication with the competent Land Tribunal. Thus, if the plaintiffs asserted that the obstacles in this case are subject to compensation, and the defendant, who is the project operator, filed an application for adjudication of expropriation, the defendant is obliged to file an application for adjudication of expropriation with the competent Land Tribunal within 60 days from

(3) Therefore, the Defendant’s refusal of the application for adjudication on expropriation of the instant obstacles (a hindrance to the serial number 7 through 10 of the attached list) or failure to take any measures so that a considerable time has elapsed without consultation on compensation (a obstacle to the attached list Nos. 17 through 19) is illegal as it goes against the purport of the application for adjudication under the Public Works Act.

As seen earlier, the defendant argued to the effect that the obstacles in this case are not subject to compensation because they were in violation of the Building Act or are evaluated in combination with the buildings, so there is no obligation to file an application for adjudication of expropriation, or that they are not subject to administrative litigation. In light of the above legal principles, the issue of whether it is subject to compensation or whether it is subject to compensation should be decided by the Central Land Expropriation Committee according to the defendant's application for adjudication, rather than by the defendant's own decision, which is the project operator, and if the plaintiffs are dissatisfied with it, the propriety thereof should be decided by the court again in the course of administrative litigation instituted by the plaintiffs. Thus, the defendant's above safety defense

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition with the decision of accepting the plaintiff's claim.

[Attachment]

Judges Choi Byung-jin (Presiding Judge)