2014Du11632 Compensation for losses

1. A;

2. B

3. C.

4. D;

Incheon Metropolitan City

Seoul High Court Decision 2013Nu28284 Decided July 25, 2014

September 8, 2016

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 3 subparag. 3 of the former Urban Railroad Act (wholly amended by Act No. 12216, Jan. 7, 2014; hereinafter the same shall apply) provides that "urban railroad facilities" shall mean any of the following facilities (including sites), one of which refers to urban railroad tracks, history, and service facilities. Article 4-6(1) of the former Urban Railroad Act provides that "where urban railroad constructors intend to use the underground portion of land of a third party for the construction of urban railroads, they shall take into account the value of such land, depth of underground, and degree of hindering the use of such land, etc." Paragraph (2) provides that "the matters concerning the subject of compensation for the use of the underground portion under paragraph (1), standards and methods shall be prescribed by Presidential Decree." Accordingly, Article 5 of the former Enforcement Decree of the Urban Railroad Act (wholly amended by Presidential Decree No. 2548, Jul. 7, 2014; hereinafter the same shall apply) provides that "three-dimensional standards for the use of the relevant underground portion of land and the land shall be determined at an amount of compensation under paragraph (1).

(Paragraph 4).

In addition, Article 4 (1) of the Incheon Metropolitan City Ordinance on the Compensation for Land Use of the Underground Part (hereinafter referred to as the "Ordinance of this case") provides that the scope of compensation for the use of underground part shall be set to the minimum scope related to the occupation area, maintenance and management, etc. of underground facilities. The scope of the horizontal area shall be the area corresponding to the vertical length of the minimum inflow width (0.5m on both sides) and the extension of facilities in the width of underground facilities. The three-dimensional range shall be set from the horizontal area to the upper and lower height of underground facilities, and the protection floor shall be set from the upper and lower height of underground facilities to the extent that the protection floor shall be 6m for a tunnel structure and 0.5m for an open structure, respectively. In addition, Article 7 of the Ordinance of this case provides that "the rate of interference with the use of underground part, which is the constituent element of the three-dimensional sea-level low rate of use" in [Attachment 2] [Attachment 4] to the upper depth of underground facilities (P. 4m.).

2. According to the reasoning of the lower judgment and the record, ① the Central Land Tribunal made a ruling on the use of each of the instant lands (hereinafter referred to as “instant ruling”) to implement the Incheon Urban Railroad Construction Project (E) with the Defendant’s project implementer on February 17, 2012; ② the underground portion of each of the instant lands was to be used for the construction project of Incheon Urban Railroad (hereinafter referred to as “instant underground facilities”); and the instant underground facilities were to be used for the construction project of the Incheon Urban Railroad (hereinafter referred to as “the instant underground facilities”). The area of the instant underground facilities should be determined by the lower court’s determination of the size of the area of the underground facilities, excluding the area of the underground facilities at least 3.5 meters in diameter from the front part of the tunnel at intervals of about 1m in diameter, and then sealed the steel tunnels by inserting cement between the rocks and then concluding the construction project with metal to be used as the lower part of the tunnel at least 1 mV at the distance of construction of each of the instant land (excluding the upper part).

On the premise of such factual basis, the lower court determined that the part of the YV construction is only for the protection of tunnels, which are underground facilities in the instant case, and does not constitute urban railroad facilities as provided by Article 3 subparag. 3 of the former Urban Railroad Act, and determined that there was no illegality in determining the amount of compensation for the use of the underground parts of each of the instant land, by considering the distance from the uppermost part of the tunnels, excluding the part of the YV construction, to the ground surface, within the scope of the horizontal area of compensation.

However, such determination by the court below is difficult to accept for the following reasons.

A. First, we examine as to whether the part of the mV construction to be installed in the underground part of each land of this case constitutes “urban railroad underground facilities” as provided in Article 2 subparag. 1, Article 4(1)1 and 4(1)2 of the Ordinance of this case.

Article 3 subparag. 3 of the former Urban Railroad Act and Article 1-2 of the former Enforcement Decree of the Urban Railroad Act do not explicitly provide for urban railroad facilities. However, the term “railroad facilities” in Article 3 subparag. 3 (a) of the former Urban Railroad Act mean tracks to operate rolling stock and facilities such as streets, bridges, tunnels, etc. [see, e.g., Article 3 subparag. 5 of the Framework Act on Railroad and Mountain Power Generation, Article 2 subparag. 6 (a) of the Railroad Construction Act, Article 2 subparag. 2 of the former Rules on the Safety Standards for Urban Railroad Facilities (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 81, Mar. 19, 2014). As a result, tunnels for urban railroad facilities are installed, and it is reasonable to view that the construction of the urban railroad has been integrated with tunnels for fixing the tunnels to the base, and ③ the owner of the urban railroad facilities cannot be deemed to have engaged in new construction or reconstruction of the urban railroad facilities within the scope of compensation or reconstruction of the underground facilities.

B. Therefore, in the instant case, the scope of the horizontal area of compensation for the use of land in the underground segment ought to be deemed to be the area corresponding to the vertical area from the sum of at least 0.5 meters in the width of the tunnel, not the area corresponding to the vertical area, but to the sum of at least 0.5 meters in the width of the tunnel, including the part of the evern V V, and the part corresponding to the vertical area. Furthermore, regarding the three-dimensional scope of compensation, the distance from the uppermost part of the part of the YV construction to the ground level should be calculated accordingly by deeming the distance from the upper part

C. Nevertheless, on different premise, the lower court rejected Plaintiff’s claim by calculating the horizontal scope and three-dimensional scope of compensation without considering this part, deeming that the part of the mV construction is not included in urban railroad facilities. In so doing, the lower court erred by misapprehending the legal doctrine on the concept of “urban railroad facilities” and the scope of compensation under the Urban Railroad Act, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jong-hee

Justices Park Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok