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대법원 2012. 12. 27. 선고 2011두27827 판결
[손실보상금청구][공2013상,251]
Main Issues

[1] In a case where Gap, who operated a business within a business district at the time of the public announcement of the public announcement of the public announcement of a general local industrial complex development project, transferred his/her place of business to another place within a business district after the public announcement of the public announcement of the public announcement of the public announcement, filed a petition for adjudication of expropriation at the request for business compensation, etc., but the competent Land Tribunal dismissed Gap's claim on the ground that the transfer of the rental period to the public announcement of the public announcement of the public announcement was not a loss due to the execution of the public works since the lease period was terminated, the case affirming the judgment below holding that if

[2] In the case where the place of business, etc. is transferred after the public announcement date of the project approval as to compensation for business losses under Article 77 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and at the time of adjudication of expropriation, business facilities, etc. do not exist on the relevant land, the burden of proving that business facilities, etc. exist at the time of the public announcement date of the project approval.

Summary of Judgment

[1] The case affirming the judgment below holding that in case where Gap, who operated business within a business district at the time of the public announcement of the public announcement of the public announcement of the general local industrial complex development project, has been equipped with business facilities within the business district and operated the manufacture and sale of sanctions and joint plates, etc. after moving his business place to another place within the business district after the public announcement of the public announcement of the public announcement, filed a claim for adjudication of expropriation on the ground that the competent Land Tribunal's business place did not cause losses due to the execution of public works since the expiry of the lease term of Gap's business place, and the period of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement, Gap's claim was dismissed on the ground that Article 75 (1) and Article 77 (1) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works Projects and Article 45 subparagraph 1 of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works Projects shall be determined based on the public announcement of the public announcement of the authorization.

[2] Where the place of business, etc. is transferred after the public announcement date of the project authorization and there is no business facility on the land at the time of the adjudication of expropriation, the person who asserts that there was a facility or an obstacle for the business at the time of the public announcement date of the project authorization.

[Reference Provisions]

[1] Articles 75(1) and 77(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 45 subparag. 1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Articles 75(1) and 77(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 45 subparag. 1 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Plaintiff-Appellee

Cheongyang Mye Co., Ltd. (Law Firm Jinsan, Attorneys Lee Ho-hon et al., Counsel for the defendant-appellant

Defendant-Appellant

Incheon Urban Corporation (Law Firm Apex, Attorneys Min Hong-soo et al., Counsel for the plaintiff-appellant)

Judgment of the lower court

Seoul High Court Decision 2010Nu33513 decided October 14, 2011

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

The grounds of appeal are examined.

1. Examining the relevant provisions and records of Articles 75(1) and 77(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and Article 45 subparag. 1 of the Enforcement Rule thereof, the lower court’s determination on whether business losses and obstacles in the instant case are subject to compensation on the grounds as stated in its holding should be based on the public announcement of project approval, and if the business losses and obstacles are subject to compensation at the time of the public announcement of project approval, the lower court’s determination on whether the business losses and obstacles in the instant case are still subject to compensation without examining whether the business places have been separately permitted at the transferred or transferred place, even if the place of business had been transferred after the public announcement of project approval. In so doing, contrary to what is alleged

2. Meanwhile, where the place of business, etc. is transferred after the public announcement of the project authorization and no business facility, etc. exists on the land at the time the expropriation ruling is made, the person who asserts that there was a facility or an obstacle for the business at the time of the public announcement of the project authorization and that there was an obstacle to the business at the time.

However, according to the evidence duly admitted by the court below and the court below, the plaintiff was operating a business facility in the land located in the Incheon Seo-dong, Seo-gu, Incheon as at December 26, 2006, which is the public announcement of the project approval of this case. The plaintiff, after the public announcement of the project approval, had a certain business facility in the land located in the project district, Seo-gu, Incheon as at the time of the public announcement of the project approval of this case, and operated a manufacturing and selling of restrictive trees and joints, etc., and the plaintiff, who had terminated the lease period in the above land after the public announcement of the project approval, had moved the place of business into the land located in the same project district and moved the facilities already used in the previous trade name and operated the same business. However, the size and facilities of the business of this case were somewhat reduced or decreased, and the defendant prepared a survey report on goods at the time of the public announcement of the project approval of this case as at the time of the public announcement of the project approval of this case's (number 2 omitted).

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, failing to exhaust all necessary deliberations, or omitting judgment, which affected the conclusion

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)