(영문) 서울고등법원 2012.4.6.선고 2011누31019 판결

1. Of the judgment of the first instance court, the part against the plaintiffs corresponding to the amount ordered to be paid below shall be revoked.

2. The defendant shall pay to the plaintiff A 55,526,046 won, 427,509,097 won, and 5% interest per annum from October 9, 2010 to April 6, 2012, and 20% interest per annum from the next day to the day of full payment.

3. The plaintiffs' remaining appeals are dismissed.

4. Of the total litigation costs, 25% are borne by the Plaintiffs, and the remainder is borne by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff A 849,247,529 won, 585,660,029 won, and each of them shall be 5% per annum from October 8, 2010 to the service date of the complaint of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff A shall be revoked, and the part against the plaintiff B which orders payment under the following among the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff A 692,195,029, the amount of KRW 427,509,097, and each of them shall be 5% per annum from October 8, 2010 to the service date of the complaint of this case, and 20% per annum from the next day to the day of complete payment (the purport of appeal based on the statement of the purport of appeal filed by the plaintiff B on October 11, 2011 shall be deemed to have been partially reduced by the statement of the reasons for appeal filed on November 7, 2011).

Reasons

1. Quotation of judgment of the first instance;

The court's reasoning with the exception of the conclusion in this case is as stated in the reasoning of the judgment of the court of first instance, with the exception of the reasoning of the judgment of the court of first instance, "as of May 19, 2010," "as of May 18, 2010," "this judgment of the court of first instance", "as of May 10, 2010," "as of May 10, 201," "as of May 10, 201," "as of May 19, 200," "as of this part, the argument of this part", "as of 14, 19, 14, and 17, from 10, 16, to 13, 17, and 17, as stated in the following Paragraph (2). Thus, this shall be cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act

2. Parts to be dried;

2) As to the claim for additional dues

A) Requirements for claiming additional charges

(1) Since prompt completion of the confinement procedure has a big interest in the recipient, if an agreement is not reached after a public announcement of project approval, the landowner and person concerned (hereinafter referred to as “land owner, etc.”) may request the project operator in writing to file an application for adjudication (Article 30(1) of the Public Works Act). This is to protect the interests of the landowner, etc. who is to make prompt and prompt confirmation of legal relations surrounding the expropriation, and to ensure fairness between the recipient parties (see Supreme Court Decision 97Da31175, Oct. 10, 197). Furthermore, when the project operator receives a request for adjudication after the above period, he/she shall file an application for adjudication with the competent Land Tribunal within 60 days from the date of the request. If the project operator files an application for adjudication after the above period, he/she shall pay an additional amount calculated by applying the statutory interest rate under Article 3 of the Act on Special Cases concerning Promotion, etc. of Legal Proceedings (see Article 30(2) and (3) of the Public Works Act). Meanwhile, if the project operator fails to make payment or deposit by the commencement date, it shall be construed as follows.

(2) 그런데, 이 사건과 같이 이미 보상협의를 거쳐 이루어진 수용재결이 실효된 후 다시 재결신청을 하는 경우에 사업시행자가 별도의 보상협의 등을 거칠 것이 요구되는지에 관하여 살피건대, ① 공익사업법 제26조 제1항은 사업인정을 받은 시행자에게 토지소유자 등과의 보상에 관한 협의 절차를 거칠 것을 요구하고 있고, 같은 법 제30조 제1항도 "사업인정고시가 된 후 협의가 성립되지 아니하였을 때" 재결신청 청구가 가능하다고 규정하고 있을 뿐이어서, 수용재결 실효 이후 다시 수용재결을 신청할 때 보상을 위한 협의 절차를 다시 거쳐야 한다고 볼 근거가 없는 점, ② 공익사업법 제42조 제1항에 따라 재결이 실효되어도 실효되는 것은 공법행위인 재결이지 재결신청의 전제요건인 보상협의의 불성립이라는 사실관계까지 없어지는 것으로 볼 수는 없는 점, ③ 공익사업법 제30조 제3항이 재결신청을 지연한 데 대하여 가산금을 지급하도록 정하고 있는 것은 보상 문제에 관한 토지소유자의 법적 지위의 불안정을 조속히 해소하고자 하는 것인데, 또다시 보상협의 절차를 밟도록 하면서 그 시점마저 사업시행자의 자의(怒意)에 맡긴다면 위 법률조항의 입법취지를 몰각하는 결과가 되는 점 등을 고려하여 보면, 개별 토지 등의 보상을 위한 협의는 사업인정을 단위로 하여야 하는 것이지 수용재결의 신청을 단위로 할 것은 아니며, 수용재결이 실효된 후 다시. 수용재결을 신청할 때는 토지소유자 등이 사업시행자에게 먼저 보상협의 절차를 거칠 것을 요구하는 등의 예외적인 사정이 없는 한 다시 보상협의 절차를 거칠 필요가 없다고 봄이 상당하다.

(3) In addition, if the procedure for adjudication is already in progress or the adjudication is valid at the time when a landowner, etc. requests a project operator to file an application for adjudication, the project operator shall not be obliged to file an application for adjudication again. However, if the adjudication becomes invalidated due to the project operator's failure to pay or deposit the compensation, the project operator's application for adjudication shall lose its validity, while there is no ground to deem that the claim for adjudication by the landowner, etc. is invalidated. In such a case, the project operator shall be obliged to file an application for adjudication again with the competent Land Tribunal within 60 days from the beginning day of the day following the day when the adjudication becomes invalidated at the request of the landowner, etc., and if the application for adjudication is filed after the lapse of the said period,

B) As to Plaintiff A’s claim

On March 18, 2009, when the first expropriation ruling was made, the Plaintiff filed an application for adjudication on expropriation with the Defendant on March 18, 2009, and the first expropriation ruling was invalidated on May 15, 2009, the Defendant filed an application for the second expropriation ruling with the Defendant on May 18, 2010. Thus, the Defendant should pay the Plaintiff additional charges pursuant to Article 30(3) of the Public Works Act for the period from July 16, 2009 to May 18, 2010, which is the day following the date when the first expropriation ruling was invalidated.

C) As to Plaintiff B’s claim

Plaintiff B filed an application for adjudication on expropriation with the Defendant on June 30, 2009, which was after the first adjudication on expropriation was invalidated, but the Defendant applied for the second adjudication on expropriation on May 18, 2010. Thus, the Defendant should pay the Plaintiff B additional dues 429,147,063 (2,9,287,750 won 20% 262:365 and less than won) under Article 30(3) of the Public Works Act for the period from August 30, 209 to May 18, 2010, which was the day following the lapse of 60 days from June 30, 2009 to June 30, 2010.

D) Sub-determination

Therefore, the defendant is obligated to pay to the plaintiff A 55,526,046 won, 427,509,09,097 won, and each of them, to the plaintiff B, for delay damages calculated at the rate of 5% per annum from April 6, 2012, where it is deemed reasonable for the defendant to dispute about the existence and scope of the obligation, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiffs' claim of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since part of the part against the plaintiffs in the judgment of the court of first instance differs from this conclusion, it is unfair to accept part of the plaintiffs' appeal and revoke it, and since the remaining part of the judgment of the court of first instance is legitimate, the plaintiffs' remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.