2016Kahap342 Disposition of suspension or temporary suspension of construction

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

1. A smart rail company;

2. Sch construction company;

3. Korea Rail Network Authority;

December 20, 2016

1. The debtors shall not suspend and continue construction works on the tunnel portion of approximately 115 meters, indicated in the separate sheet, which passes through the underground of the real estate listed in paragraphs 1 and 2 of the separate sheet;

2. The execution officer shall publicly announce the purport of the said order in the proper manner.

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

The same shall apply to the order.

1. Basic facts

In full view of the overall purport of records and examinations, the following facts are substantiated.

A. The debtor Smart Day Co., Ltd. (hereinafter referred to as the "debtor Smart Day") is an executor of the I Private Investment City Project (hereinafter referred to as the "Project in this case"). The debtor's Korea Rail Network Authority is a contractor entrusted or entrusted with the authority of the Ministry of Land, Infrastructure and Transport, which is the competent authority of the project in this case, to deal with the affairs of land compensation and securing land sites, and the debtor's KS Construction Co., Ltd. (hereinafter referred to as the "debtor Construction") is a contractor who has contracted Section 1 construction among the above projects.

B. The obligees are owners of Busan J apartment (hereinafter referred to as "the apartment of this case"). As the project implementation plan of this case was approved on May 30, 2014, the related construction began from June 2014. The co-ownership of the apartment of this case (hereinafter referred to as "the site of this case") is incorporated into the section of K Tunnels (hereinafter referred to as "the tunnel of this case") among the Section 1 of the project of this case.

2. Determination

According to Articles 40 and 62 of the Land Compensation Act, a project operator shall pay the full amount of compensation to landowners and persons concerned before commencing construction works for the relevant public works, except where the use of land at the time of a natural disaster under Article 38, urgent use of land under Article 39, or consent of landowners and persons concerned is obtained.

In order to construct railroads, Article 12-2 of the Railroad Construction Act provides that a project implementer shall provide compensation in consideration of the value of land use, the depth of underground and the degree of obstructing the use of land, etc., and matters necessary for the objects of compensation, criteria for compensation, methods of compensation, etc. shall be prescribed by Presidential Decree. Article 14-2 (2) of the Enforcement Decree of the same Act provides that compensation for the use of underground portion of land shall be calculated according to the methods of calculation in the attached Table. In addition, the detailed criteria for calculation of compensation shall be prescribed in the attached Table as stated in the attached Table in the relevant Acts and subordinate statutes, and at the same time the detailed criteria for calculation of compensation shall be prescribed in the attached Table, and the detailed criteria for calculation, such as the lower rate of usage, the rate of use of the damaged floor or the damaged underground depth

Article 12-2 of the Railroad Construction Act and Article 14-2 (2) of the Enforcement Decree of the same Act and Article 4 of the "Standards for Compensation for Land Use in Underground Part for Railroad Construction (Public Notice of the Ministry of Land, Infrastructure and Transport No. 2014-104)" provide for each region's limit limits, and Article 8 (6) provides different compensation rates depending on the degree of excess of the limit limit in cases where underground facilities are installed at a depth higher than that of the limit limit, and the detailed contents are as stated in the relevant Acts and subordinate statutes.

Therefore, in full view of the aforementioned attached laws and regulations, since the construction of the underground section of the site of this case among the tunnel construction of this case is conducted in a vertical distance of 43 to 49 meters from the surface of the earth, and the construction of underground facilities is installed in a depth of 40 meters from the high-rise area limit of 40 meters from the surface of the earth, the implementer of the project of this case shall calculate and pay compensation in accordance with the relevant laws and regulations before commencing construction to the creditors.

The following circumstances revealed in full view of the purport of the records and the whole examination, namely, the obligor asserts that there was the consent of the obligees corresponding to the exception of the pre-compensation principle. However, the obligor's data alone lack to vindicate the obligor's consent and no other supporting material exists; there is no evidence to vindicate that there is any exception to the pre-compensation principle as prescribed by the Land Compensation Act; the obligor's Korea Rail Network Authority denies the obligor's duty to compensate to the obligees; the obligor's Smart Day and SK Construction did not submit any supporting material to explain that the obligor's compensation procedure is underway; the obligor's Smart Day and SK Construction claimed that the underground portion of the public site of this case was completed almost, and even if the obligor discontinued the construction until the obligor's compensation procedure is completed, it is difficult to view that the obligor could not recover to the obligor even if the construction was suspended until the obligor's compensation procedure is completed. In light of the overall circumstances revealed in the records, the obligor's need to preserve the above construction as co-owner of the public site of this case.

3. Conclusion

Therefore, the application of this case shall be accepted for the reasons and it shall be decided as per the disposition.

December 20, 2016

The presiding judge, Judge Park Jong-hun

Magjin-jin

Judges 00 Efficacy