(영문) 의정부지방법원 2019.1.29.선고 2015구합8492 판결

1. The Defendant shall pay to the Plaintiff A 38,105,40 won, 30,118,200 won, and 15% interest per annum from July 14, 2015 to January 29, 2019, and 30,100 won per annum from the next day to the date of full payment.

2. The plaintiff A and B's remaining claims and the plaintiff C's claims are dismissed, respectively.

3. Of the costs of lawsuit, 8/10 of the portion arising between the plaintiffs A, B and the defendant shall be borne by the above plaintiffs, the remainder by the defendant, and the part arising between the plaintiff C and the defendant shall be borne by the plaintiff C.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff A and B 246,443,300 won, and to the plaintiff C 93,54,177 won with 15% interest per annum from the day following the service date of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Details of ruling;

(a) Approval and public notification of the project;

(a) Project name: D (hereinafter referred to as “instant project”);

2) Notice: E published by the Ministry of Land, Transport and Maritime Affairs on June 5, 2012

3) Project operator: F Co., Ltd. [Provided, That the Defendant acting on his/her behalf pursuant to Article 6 of the former Motorway (repealed by Act No. 12248, Jan. 14, 2014)]. (b) The Central Land Expropriation Committee’s ruling of expropriation on April 23, 2015

1) Commencement date of expropriation: June 16, 2015

(ii) Persons to be expropriated;

A) The land listed in paragraph (1) of the attached Table 1 List of Real Estate owned by the Plaintiff A (hereinafter referred to as “each land listed in the attached Table 1 List of Real Estate”; and individually, “○○ Land” is classified as “each land of this case”;

B) Plaintiff A and B’s land 2, 3, and 4

C) Each obstacle owned by each of the plaintiffs on land Nos. 2 and 3

3) Compensation 1)

A) Plaintiff A: 608,086,150 won for the shares of land Nos. 1 and 2, 3, and 4) Plaintiff B: 608,086,150 won for shares of land No. 2, 3, and 4)

C) Plaintiff C: 40,739,000 won for obstacles

4) On the other hand, the plaintiffs asserted that the defendant should pay business compensation for the communications sales business (hereinafter "the business of this case") such as the plaintiff C's 's 'G' operated with the trade name on the land 2 and 3, but the Central Land Expropriation Committee did not accept the plaintiffs' assertion on the ground that the business of this case is a facility located within a development restriction zone and has not obtained legitimate authorization from the related agency, and it cannot be deemed that business losses have occurred due to the relocation of the business place due to the characteristics of the business type.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1 to 4, Eul evidence 1, the purport of the whole pleadings

2. Determination

A. Summary of the plaintiffs' assertion

1) Since the result of each appraisal at the time of the adjudication on expropriation of each of the lands in this case and the entrustment of appraisal by this court was erroneous in calculating the amount of compensation excessively less than the amount of compensation, the difference between the reasonable amount of compensation and the amount of compensation for expropriation adjudication and the compensation for delay thereof shall be claimed.

2) As Plaintiff C. The Plaintiff did not operate the instant business for three months due to the instant project and transferred the instant business to another place, Plaintiff C. As such, KRW 93,54,177 ( = Fixed Expenses + KRW 79,744,177 during the period of suspension of business operation and the period of suspension of business + Product transfer cost + KRW 13,800,000 during the period of suspension of business) and damages for delay.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

C. Determination

1) Determination as to each of the instant lands

A) Relevant legal principles

In a lawsuit seeking an increase in compensation for losses, the burden of proving that the amount of reasonable compensation exceeds the amount of compensation prescribed in the adjudication process is the Plaintiff (see Supreme Court Decision 2003Du12226, Oct. 15, 2004). In a lawsuit seeking an increase in compensation for losses, each appraisal agency’s appraisal and appraisal based on each appraisal agency’s adjudication on expropriation in the lawsuit seeking an increase in compensation for losses and the court’s appraisal and appraisal and assessment are not illegal in the appraisal methods, and there are no other differences in the appraisal results (i.e., the appraised value of the land to be expropriated) depending on a somewhat different comparison of individual appraisal and assessment in the case where there is no evidence to prove that there is an error in the comparison of individual appraisal with each other in the appraisal (see Supreme Court Decision 2002Du4679, Jan. 28, 2005), so long as it does not conflict with logical and empirical rules, it belongs to the court’s discretion (see Supreme Court Decision 2002Du4679, Jan. 28, 2005).

B) Plaintiff A and B’s assertion and determination thereof

The plaintiff A and B asserted that since the average compensation amount of 1.7 times the officially assessed individual land price was calculated for the neighboring lands expropriated as the project in this case, the reasonable compensation amount of each of the lands in this case also is 1.7 times the publicly assessed individual land price.

However, even if the compensation amount of the land to be expropriated is a neighboring land due to the same project, it is not calculated by the method of replacing the same amount as that of each individual individual land price, and it is determined at a reasonable price assessed in consideration of the use plan of the land from the basic date to the price based on the officially assessed individual land price, the rate of increase in the production rate prescribed by the Presidential Decree in an area where the land price is not affected due to the relevant public works, the rate of increase in the production rate prescribed by the Presidential Decree, the location, form, environment, utilization status, etc. of the land (Article 70 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter "Land Compensation Act")). The evidence submitted by the above plaintiffs alone is difficult to recognize that the compensation amount calculated based on 1.7 times the publicly assessed individual land price of this case is a legitimate compensation amount for each land of this case, and there is no other evidence to acknowledge it. The above plaintiffs' assertion is not acceptable. The appraisal result of this case's appraisal report of this case is commissioned 1.

In light of the fact-finding results of the H appraiser's office of this court, each appraisal and the first, second and second courts' appraisal at the time of the adjudication of expropriation are deemed to have appropriately calculated compensation as at the time of the adjudication of expropriation in accordance with the relevant Acts and subordinate statutes, and there is no evidence to find any error in the comparison standard of each appraisal, the selection of appraisal precedents, and the contents, method, etc. of goods, etc., so each appraisal is lawful. However, in light of the current status at the time of the adjudication of expropriation of each land of this case and the contents of goods, etc., in this case, the second and third courts' appraisal shall be deemed to have determined that the second and third court's appraisal are more detailed and appropriate reflecting all the factors in the characteristics and price formation of each land, and thus, the compensation shall be calculated accordingly.

C) Calculation of a reasonable amount of compensation

According to the result of the second court appraisal, it is recognized that the reasonable amount of compensation of the land 1 is 129,536,00 won and the reasonable amount of compensation of the land 3 is 1,152,10,000 won, and according to the result of the first court appraisal, it is recognized that the legitimate amount of compensation of the land 2 is 109,378,400 won and the reasonable amount of compensation of the land 14,930,300 won are 767,740,350 won [129,536,000 won + [1,378,400 won + 1,152,100,000 won + 14,930,000 won per annum 1,2050,000 won per annum 638,305,000 won per annum 1,204,309,301,301,205.

2) Determination on suspension of work of this case

A) Article 77(1) and (4) of the Land Compensation Act and Article 45 of the Enforcement Rule of the Land Compensation Act provide for the business subject to the compensation for business losses as one of the requirements thereof, and stipulate that “the business day continuously is equipped with human and physical facilities at legitimate places (referring to places other than unauthorized buildings, etc., illegal form and quality alteration land, and other areas prohibited from piling up goods in other Acts and subordinate statutes)” and the main sentence of Article 12(1) of the Act on Special Measures for Designation and Management of Development Restriction Zones is prohibited in a development restriction zone as a matter of principle from constructing buildings, installing structures, altering the form and quality of land, piling up goods, etc., and exceptionally, it is possible to obtain permission from the competent authorities, such as the head of a Si/Gun/Gu, etc.

In light of the overall purport of the pleadings as a result of fact-finding conducted by the H appraiser office of this court, the plaintiff C opened business on June 1, 2002, G and the category of the business in mail order (c.m.). The land 2 and 3 are located in the development restriction zone as of the date of the public notice of the project approval. The land 2 and 3 are located in the development restriction zone as of the date of the public notice of the project approval. The land 2 and 3 were installed in the building ledger, the house 3 were located in the building ledger, the house 2 and 3, and the house 2 and part of the land 3 were installed with CCTV, a container, a container, a gate, etc., and used the above warehouse and the above plastic house as a warehouse, and the land 2 and 3 were used as part of the land 2 and 3 as the land for the purpose of the public notice of the change of its form and quality as of the date of the above project approval. The plaintiff C used the above warehouse and the above plastic house as part of the land 320m.

B) Even if the instant business was conducted at a legitimate place, the subject of the business compensation

Also, according to Article 47(1) of the former Enforcement Rule of the Land Compensation Act (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 131, Oct. 22, 2014; hereinafter referred to as the "Enforcement Rule of the former Land Compensation Act"), the business loss of "where the place of business should be transferred due to the implementation of public works," shall be the total amount of expenses incurred in transferring the place of business, including (1) operating income corresponding to the period of suspension, (2) the depreciation costs, maintenance costs, and personnel expenses, etc. for the minimum number of persons normally required to work during the period of suspension; (3) the expenses incurred in relocating the place of business, (4) the expenses incurred in relocating the business facilities, raw materials, goods, and goods, (2) the expenses incurred in relocating the place of business, such as relocation advertising expenses and opening expenses, and (3) the expenses incurred in relocating the place of business shall be assessed by objective data, etc.; and (4)

(1) First of all, Article 47(1) main text and subparagraph 1 of the former Enforcement Rule of the Land Compensation Act provide that operating expenses corresponding to "period of suspension" and "fixed expenses during the period of suspension" shall be deemed business losses. Paragraph (2) of the same Article provides that "period of suspension under the provisions of paragraph (1) shall not exceed three months, but in exceptional cases, the actual period of suspension shall not exceed two years." Paragraph (4) of the same Article provides that "where a temporary place of business is to be suspended, operating losses shall not be deemed installation expenses of the temporary place of business but shall not exceed the value of operating losses if the temporary place of business is suspended," which can be known in light of the above provision, (i) where a place of business should be relocated due to the implementation of public works under Article 47(1) of the former Enforcement Rule of the Land Compensation Act, it shall be interpreted that operating expenses shall be included in the period of suspension under the provisions of Article 47(2) of the former Enforcement Rule, which shall not be included in the amount of compensation for losses of the temporary place of business, and shall not exceed the amount of operating losses.

In light of the above legal principles, if the plaintiff C assumed the period of suspension of business for three months, ① operating income falling under the period of suspension of business is recognized as 70,744,177 won, ② fixed expenses are recognized as 9,00,000 won, but the evidence submitted by the plaintiff alone is insufficient to acknowledge that the plaintiff suspended the business of this case due to the business of this case. Rather, according to the result of the first court appraisal conducted by the court on March 15, 2017, according to the fact-finding conducted by the H appraiser office of this court on August 25, 2016, the plaintiff C continued to conduct the business of this case without suspension of business until the time of the first court appraisal conducted over the period from August 25, 2016 to October 10, 2016, and December 25, 2016. This part of the plaintiff C's assertion is without merit.

(2) In the case of product transfer expenses, the plaintiff C transferred light products used for the business of this case.

Although the Plaintiff asserted that KRW 13,80,000 was paid for the purpose of doing so, the evidence submitted by the Plaintiff C alone is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Rather, in view of the overall purport of the pleadings as a result of the fact inquiry conducted by the court on May 10, 2017 and June 28, 2017, the fact that the Plaintiff received compensation of KRW 40,739,00 without raising any objection to the preparation of goods protocols regarding the 2,3 land obstacles in the instant case, including miscellaneous materials and office supplies, the fact that the existing warehouse, etc. for the instant business was already destroyed at the time of the first court’s on-site inspection for the first court’s appraisal, and that the first court did not exclude the expenses incurred prior to the appraisal from the cost of acquiring or acquiring goods as the cost of the transfer and calculated as the compensation for losses for the same portion as the Plaintiff’s product.

C) Therefore, Plaintiff C’s assertion does not appear to be any mother and is without merit.

3. Conclusion

Therefore, the plaintiff A and B's claims are justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. The plaintiff C's claims are dismissed as they are without merit. It is so decided as per Disposition.