Plaintiff 1 and 14 others (Law Firm Uniform, Attorney Gyeong-he et al., Counsel for the plaintiff-appellant)

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

February 17, 2017

Seoul Administrative Court Decision 2015Guhap67885 decided July 29, 2016

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

All costs of litigation shall be borne by the plaintiffs.

1. Purport of claim

The defendant shall pay 1,271,80 won to 1,20 won and its equivalent from March 25, 2009 to 2, 6,046,200 won and its equivalent from November 6, 2008 to 3, 7,074,00 won and its equivalent from November 7, 2008 to 41,615,00 won and its equivalent from January 23, 2009 to 4, 19,256,200 won and its equivalent from 20.1 to 18.2, 18, 200 won and its equivalent from 20 to 18.2, 19, 208, 200 won and its equivalent from 20 to 18.2, 19, 281, 281, 208, 19, 18, 208, and 18.2, respectively, to the plaintiff's co-inheritors

2. Purport of appeal

The same shall apply to the order.

1. Determination on the details of the adjudication and the defense before the merits

A. cite the reasoning of the judgment of the court of first instance

This Court’s reasoning is identical to the corresponding part of the reasoning of the judgment of the court of first instance (from No. 3 of the judgment of the court of first instance to No. 18 to No. 13 of the judgment of the court of first instance), with the exception of adding and adding some of its contents as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of

B. Parts of the mix

▣ 위 해당 부분의 각 “원고들”을 각 “원고 8의 가, 원고 8의 나, 원고 8의 다를 제외한 나머지 원고들과 제1심 원고 8(대판: 원고 13)은”으로 각 고친다.

▣ 제1심판결서 제5쪽 제4행 다음에 아래 내용을 추가한다.

“Plaintiff 8 of the first instance court died on February 4, 2016, and his/her heir is his/her spouse, Plaintiff 8-B and Plaintiff 8-B, who is his/her spouse.”

2. Judgment on the merits

A. Summary of the plaintiffs' assertion

Since part of the plaintiffs' land was incorporated into the site for the public works of this case, ① the size of the remaining land of this case is reduced, and the efficiency of the remaining land of this case is reduced, such as a narrow bridge or an irregular three-dimensional shape, etc., ② the conditions of cutting down, such as construction of motorways on the front of the remaining land, making entry into and exit from the remaining land more difficult than the previous one, ③ the occurrence of automobile noise, and ④ the occurrence of automobile noise, led to the lack of administrative conditions due to the designation of a clearance zone of 20 meters from the boundary line of each of the two sides of the motorways of this case, and the decline in the value of the remaining land of this case occurred, the defendant is obligated to compensate for the loss.

B. Determination

① First, the evidence submitted by the Plaintiffs alone is insufficient to recognize the decline in the value of the remaining land of this case due to the reduction in efficiency due to the reduction or change in the area of land, ② aggravation of land conditions due to difficult entry, ③ aggravation of environmental conditions due to automobile noise, etc.

Then, in light of the following circumstances, losses incurred by the designation of clearance zones constitute losses incurred by the designation of clearance zones, not by the part of the land resulting from the instant public works, but by the separate administrative act of the Minister of Land, Infrastructure and Transport, such as the designation of clearance zones, and thus does not constitute losses that the Defendant should compensate.

1) Article 49(1) of the former Road Act (wholly amended by Act No. 12248, Jan. 14, 2014; hereinafter the same shall apply) provides that "the road management agency may designate a clearance zone, as prescribed by Presidential Decree, within the extent not exceeding 20 meters from the boundary line of the road in order to prevent damage to the structure of the road, to preserve the aesthetic view, or to prevent risks to traffic." Paragraph (3) of the same Article provides that "no alteration of the form and quality of the land or new construction, reconstruction, or extension of buildings or other structures shall be permitted within the clearance zone," while Article 53(1) of the former Road Act provides that "where a clearance zone is designated, land located within the clearance zone cannot be used for the previous purpose, and the utility of the land has significantly decreased due to such designation, or where the owner of the land falls under certain requirements, the administrative agency may request the purchase of the land, as well as the compensation for losses incurred by the administrative agency or losses incurred by the disposal of the land to the State."

2) Since losses incurred by the designation of a clearance zone are not immediately caused by the partial incorporation of a clearance zone, but only losses incurred by the designation of a clearance zone, it cannot be determined whether or not losses have occurred and the amount of compensation have been compensated until the clearance zone is designated. As seen earlier, Article 49(1) of the former Road Act provides that a clearance zone shall be designated within the scope not exceeding 20 meters from the boundary of the road. As such, it is difficult to find out what extent the clearance zone is designated before the actual designation. In particular, according to the purport of the statement and the entire argument in subparagraph 4 of Article 4 of the former Road Act, the clearance zone of the national expressway of this case can be recognized as having been changed from 20 meters to 10 meters pursuant to Article 2015-538 of the Ministry of Land, Infrastructure and Transport’s notice on July 29, 2015. Considering these circumstances, it is difficult to say that the Defendant would compensate for losses incurred by the clearance zone even at the time of the acquisition of land at the remaining time of the clearance zone.

3) The subject of compensation due to the designation of a clearance zone does not coincide with the subject of compensation due to the expropriation of land or the acquisition of consultation. The subject of compensation for remaining land due to the expropriation of land or the acquisition of consultation is a project operator pursuant to Article 73 of the former Land Compensation Act, while the subject of compensation due to the designation of a clearance zone is the State or a local government pursuant to Article 92 of the former Road Act, and the subject of compensation is also the State or a local government. The Plaintiffs claim that the Defendant is the subject of compensation due to the implementation of a road project and the duties of a road management authority entrusted by the Minister of Land, Infrastructure and Transport pursuant to Article 13(1) and (3) of the Korea Highway Act. The Plaintiffs asserted that the Defendant is the subject of compensation due to the designation of clearance zone, but the said provision alone, which the Plaintiffs cited, has the authority to immediately act on behalf of the Defendant (in this case, the designation of clearance zone was directly made by the Minister of Land, Infrastructure and Transport)

4) The common burden due to the designation of a clearance zone is borne by all landowners near the road regardless of partial expropriation or acquisition of land through consultation. Therefore, the legal relationship of compensation for losses arising therefrom need to be resolved in an arbitrary and equitable manner. Therefore, the Plaintiffs cannot separately claim compensation in a separate procedure without undergoing consultation or adjudication under Article 92(2) and (3) of the former Road Act on the ground that the designation of a clearance zone was made by the Plaintiffs.

3. Conclusion

Therefore, the part of the claim against the 531m2 of the lawsuit of this case of this case by Plaintiff 12 is unlawful and dismissed, and the remaining claims of the plaintiffs are without merit. Since the judgment of the court of first instance is partially unfair, the part against the defendant among the judgment of the court of first instance accepted the defendant's appeal, and the part against the defendant in the judgment of first instance is revoked, and all the claims of the plaintiffs corresponding to that part are dismissed, and the total costs of the lawsuit are borne by the plaintiffs.

Judges Kim Yong-seok (Presiding Judge)

1) The first instance court or the first instance court appraiser did not recognize any losses incurred therefrom, and the Plaintiffs did not object to this.

2) However, even in cases where compensation for losses should be made pursuant to the above provisions, in all cases, it is not possible to compensate, but where there is a special sacrifice that impedes the essential utility of property rights beyond the scope of the social constraints that the general public should recognize due to the designation of clearance zones, the compensation shall be possible.

3) In light of the legislative intent of Article 53(1) of the former Road Act and the fact that there is no precedent of compensation due to the designation of a clearance zone up to the present day, the Defendant asserts that any loss that fails to reach the exercise of the right to purchase is excluded from the subject of compensation. However, such circumstance alone alone is difficult to deem that the provisions of Article 92(1) of the former Road Act do not apply even if there