[1] The meaning of "where the remaining facilities cannot continue the business without newly installing the facilities or repairing the remaining facilities due to the incorporation of part of the business facilities into the public works," which is the requirement for compensation for losses of the remaining business facilities

[2] Whether a person who suffered losses in the remaining business facilities due to the incorporation of part of the business facilities for public works can immediately claim compensation for losses in the remaining business facilities against the project operator without going through the adjudication procedure (negative)

[3] In a case where the competent Land Tribunal rendered an adjudication that a certain item of compensation falls under the objects of statutory compensation for the acquisition of land, etc. for public works and the compensation therefor, thereby misunderstanding facts or misunderstanding legal principles, the lawsuit filed by the person who received compensation and the other party thereto

[1] Even if it is possible for a project operator to use the remaining land for its original purpose due to the acquisition of a part of a group of land belonging to the same landowner, it shall be subject to compensation for the remaining land, and it shall not be subject to compensation for the remaining land only if it is impossible or considerably difficult to use the remaining land for its original purpose. Likewise, the requirement for compensation for losses of the remaining business facilities, which is the requirement for compensation for losses of the remaining business facilities, "where it is impossible to continue the business without installing new facilities or repairing the remaining facilities due to the incorporation of a part of business facilities into a public-service business," means not only the case where the operation of the remaining business facilities becomes impossible or difficult without installing new facilities or repairing the remaining facilities, but also the case where the operation of the remaining business facilities is required due to the incorporation of part of the public-service business facilities into the public-service business facilities. Accordingly, in order to continue the normal business as before, it shall be construed to include the case where the remaining

[2] In full view of the contents and legislative purport of Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Land Compensation Act”), in order for a person who has suffered losses from the remaining business facilities due to the incorporation of part of the business facilities into the public interest project, to receive compensation for losses from the project operator pursuant to Article 47(3) of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 131, Oct. 22, 2014) to obtain compensation for losses from the remaining business facilities, it is not immediately allowed to claim compensation for losses from the project operator under Article 83 through 85 of the Land Compensation Act.

The issue of whether a decision was made shall be determined by each item of compensation. The basic unit of compensation for each person’s land, goods, rights, or business falls under the scope of compensation for losses, and furthermore whether the amount of compensation is much. In the case of compensation for incorporated land, goods, obstacles, compensation for the remaining land, buildings, or claims for expropriation, in principle, one item of compensation for each individual item, but in the case of compensation for business losses including compensation for losses for remaining business facilities, “business as a single facility as a whole” is an item of compensation, and the detailed business facilities, operating profits, and the period of suspension of business are merely an element of considering in the calculation of the amount of compensation for business. Thus, further assertion of the detailed element of the calculation of compensation for losses within the scope recognized as the uniformity and identity of business is only an attack method permitted within one item of compensation, and thus it is not necessary

[3] Where a certain item of compensation falls under the objects of statutory compensation for the acquisition of and compensation for land, etc. for public works, but the competent Land Tribunal rendered an adjudication with erroneous contents that it does not fall under the objects of compensation due to misconception of facts or misunderstanding of legal principles, the person subject to compensation shall not file a lawsuit seeking cancellation of such adjudication against the competent Land Tribunal, but shall file a lawsuit seeking increase or decrease of compensation under Article 85(2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (Amended by Act No. 11690, Mar. 23, 2013) against the project operator

[1] Articles 73(1), 75-2(1), and 77(1) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11690, Mar. 23, 2013); Articles 46, and 47(3) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 131, Oct. 22, 2014); Articles 26, 28, 30, 30, 50, 61, 83, and 84 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Articles 36 and 47(3) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11690, Mar. 23, 2013); Article 30 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Public Works Projects;

[1] Supreme Court Decision 97Nu4623 Decided May 14, 1999 (Gong199Sang, 1173) / [2] Supreme Court Decision 2009Du10963 Decided September 29, 201 (Gong2011Ha, 2238) Supreme Court Decision 2017Du41221 Decided May 15, 2018 (Gong2018Sang, 108) / [3] Supreme Court Decision 2008Du822 Decided August 19, 2010 (Gong2010Ha, 1823)

Hanjin Electric Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Lee Dong-chul et al., Counsel for the defendant-appellant)

Incheon Metropolitan City (Law Firm Effective, Attorneys Park Jong-jin, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Nu8140 decided November 3, 2015

The part of the judgment of the court below against the plaintiff as to the attached Nos. 1, 2, and 4 shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. A. Article 77(1) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Land Compensation Act”) provides for compensation for business losses, and Article 77(4) provides for matters concerning detailed calculation of compensation amount, etc. shall be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. Following delegation, Articles 46 and 47 of the former Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 131, Oct. 22, 2014; hereinafter “Enforcement Rule of the Land Compensation Act”) provide for the method of calculating compensation for business losses by dividing into cases of Article 46 and Article 47(3)1 of the same Act. Article 47(3) of the same Act provides for one of such cases that “where part of the remaining facilities are newly installed due to the incorporation of public works, or the remaining facilities without the installation of the facilities, the amount of operating losses (i.

The legislative purpose of the compensation for losses for remaining business facilities is to realize the principle of fair compensation under the Constitution by providing a project operator with a joint compensation for losses incurred in the remaining land, buildings, and business facilities, in cases where a project operator acquires part of a group of land, buildings, and business facilities by dividing them in order to implement a public project, compared with the compensation for the remaining land under Article 73(1) of the Land Compensation Act and the compensation for the compensation for the remaining buildings under Article 75-2(1) of the Land Compensation Act. Therefore, when interpreting the requirements for compensation for losses, it shall be considered that the types of the objects of the compensation are different from those of the objects of the compensation, but it shall be identical to one another from the perspective of the legislative purpose and legitimate compensation under the Constitution.

Even if it is possible for a project operator to use the remaining land for its original purpose due to the acquisition of a part of a group of land belonging to the same landowner, etc., the remaining land is subject to compensation for losses, and only if it is impossible or considerably difficult to use the remaining land for its original purpose (see, e.g., Supreme Court Decision 97Nu4623, May 14, 199). Likewise, “where a project operator cannot continue his/her business without installing new facilities or repairing the remaining facilities because a part of his/her business facilities is incorporated into a public works project,” which is the requirement for compensation for losses of the remaining business facilities, “where the remaining facilities cannot be installed due to the incorporation of a part of his/her business facilities into a public works project,” it does not mean only the case where the operation of the remaining facilities becomes impossible or difficult without installing new facilities or repairing the remaining facilities, but it also includes the case where a part of his/her business facilities is incorporated into a public works project to continue the previous business as well as the case where the remaining facilities need to be newly installed in the remaining business facilities.

B. In full view of the contents and legislative purport of Articles 26, 28, 30, 34, 50, 61, and 83 through 85 of the Land Compensation Act, in order for a person who has suffered losses to the remaining business facilities due to the incorporation of part of the business facilities into the public works to receive compensation for losses to the remaining business facilities from a project operator pursuant to Article 47(3) of the Enforcement Rule of the Land Compensation Act, the land compensation Act may be granted a remedy for infringement of rights pursuant to Articles 83 through 85 of the Land Compensation Act only when the person is dissatisfied with the said adjudication without going through the adjudication procedure (see, e.g., Supreme Court Decision 2009Du10963, Sept. 29, 201).

Whether a person has undergone a judgment procedure shall be determined by each item of compensation. Determination is based on which land, goods, rights, or business is subject to compensation for losses, and further on the basis of examining and determining whether the amount of compensation is much (see Supreme Court Decision 2017Du41221, May 15, 2018). Compensation for incorporated land and goods, obstacles compensation, compensation for losses for remaining land and buildings or claims for expropriation, in principle, one item of compensation for each item of property, but in cases of business compensation including compensation for losses for remaining business facilities, “total business as a single facility” is an item of compensation, and the detailed business facilities, operating profits, and period of suspension of business are merely an element to be considered in calculating the amount of compensation for business losses. Thus, further assertion of detailed elements of calculating the amount of compensation within the scope recognized as uniform and identical to business operations is merely a method of attack permissible within a single item of compensation, and thus does not require separate adjudication procedures.

Meanwhile, in a case where the competent Land Tribunal rendered an adjudication that the compensation items fall under the scope of compensation under the Land Compensation Act by misunderstanding facts or misunderstanding legal principles, the person subject to compensation should not file a lawsuit seeking cancellation of the adjudication against the competent Land Tribunal, but file a lawsuit seeking an increase or decrease of compensation amount under Article 85(2) of the Land Compensation Act against the project operator (see Supreme Court Decision 2008Du822, Aug. 19, 2010, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

A. The Defendant filed an application with the competent Central Land Expropriation Committee for a ruling on expropriation of the obstacles, such as the land incorporated into the competent Land Expropriation Committee and the fences, trees, resting rooms, flowers, flowers, irrigation rooms, irrigation rooms, rooms, entrance and exit doors, which are part of the manufacturing factories related to electric power transmission operated by the Plaintiff in the Dong-gu Incheon Metropolitan City (hereinafter “instant factories”), in order to expropriate the land of 5-177 square meters, which is part of the manufacturing factories related to electric power transmission operated by the Plaintiff in the Dong-gu Incheon Metropolitan City (hereinafter “instant factories”).

B. The Plaintiff asserted to the effect that “If the Defendant expropriates a part of the instant factory by dividing it, it is difficult to enter into and depart from a large truck loaded with the product only through the remaining passage of the front section of the instant factory, and in order to secure a passage for the smooth entry of large trucks, part of the factory structure should be removed, so the construction cost should be additionally compensated.”

C. On October 7, 2011, the Central Land Tribunal rendered a ruling to reject the Plaintiff’s assertion on the ground that “ even if there is a little inconvenience in the work and movement of the ex-factory in the instant plant due to the Defendant’s divided expropriation, it does not make it practically impossible to operate the instant factory.”

D. On December 7, 201, the Plaintiff dissatisfied with the adjudication of acceptance, filed the instant lawsuit against the Defendant claiming the Defendant for the increase in compensation for obstacles (Paragraph 6 of the attached Form of the judgment of the lower court) and the compensation for various losses or construction costs incurred in the instant factory due to the partial expropriation (Paragraph 1 through 5 of the attached Form of the judgment of the lower court) as alleged.

3. Examining the above facts in light of the legal principles as seen earlier, the following determination is possible.

A. It is highly probable that the entry of large-scale trucks into the front part of the instant factory into the instant public works has become difficult due to the incorporation of part of the factory site and facilities of the instant factory into the front part of the instant public works, and the occurrence of losses, such as the decrease in the ratio of the number of factories or the factory delivery quantity, etc., caused by the decline in the efficient operation of the instant factory. As can be seen, if losses were incurred to the remaining business facilities due to the incorporation of part of the instant public works into the business facilities, even if it is impossible or difficult to continue to conduct business in the remaining business facilities, the expenses for the construction to solve such losses or construction shall be compensated as losses or construction expenses incurred from the remaining business facilities under Article 47(3) of the Enforcement Rule of the Land Compensation Act.

B. As part of the site and facilities of the instant factory were incorporated into the instant public works, losses incurred in the remaining business facilities or expenses incurred in resolving such losses shall be deemed to be included in the “compensation items” for the instant factory business that constitutes a single facility and business as a whole. In addition, the Central Land Tribunal rendered substantive deliberation and determination in the relevant expropriation ruling. Paragraphs 1 through 5 of the attached Table 1 of the judgment below regarding the claim for compensation for losses is merely a specific assertion that the Central Land Tribunal specifically divided the compensation items for which substantive deliberation and determination was made in the adjudication of expropriation into the lawsuit, and thus, it is reasonable to deem that the Plaintiff had undergone the adjudication procedure stipulated in Articles 34 and 50 of the Land Compensation Act regarding the whole.

C. Furthermore, as seen above, the court should deliberate and decide on how to calculate the loss incurred to the factory of this case, and whether it is reasonable as it is necessary for the construction to claim by the Plaintiff.

4. Nevertheless, the lower court determined otherwise, that the Plaintiff failed to meet the requirements for compensation under Article 47(3) of the Enforcement Rule of the Land Compensation Act with respect to the details of the claim for compensation of losses Nos. 1 and 2 attached to the lower judgment, and determined that the lawsuit was unlawful due to the Plaintiff’s failure to undergo adjudication procedures. In so determining, the lower court erred by misapprehending the legal doctrine on the lawfulness of the remaining business facilities compensation and the lawsuit seeking an increase or decrease of compensation, and failing to exhaust all necessary deliberations, thereby adversely affecting

5. Therefore, the part of the judgment of the court below against the plaintiff regarding the compensation for losses for the remaining business facilities as set forth in Nos. 1, 2, and 4 of the separate sheet is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Jae-chul (Presiding Justice)