Plaintiff (Attorney Jeong-sik et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Doll, Attorney Park Young-chul, Counsel for defendant-appellant)

October 16, 2012

Suwon District Court Decision 2010Guhap3041 Decided September 6, 2011

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to pay is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed

The defendant shall pay to the plaintiff 63,90,000 won with 5% interest per annum from March 10, 2010 to November 6, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. 4/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 278,200,000 won with 5% per annum from March 10, 2010 to the rendering of the first instance judgment, and 20% per annum from the next day to the full payment day.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of ruling;

(a) Approval and public notification of projects;

- Housing site development project (○○○○ area) (hereinafter “instant project”).

- Notice of the Ministry of Construction and Transportation No. 2007-390, Sept. 21, 2007

- Project operator: Defendant

- Persons to be admitted: 1,000 square meters prior to the two weeks ( Address 1 omitted) (hereinafter “instant land”).

(b) Adjudication on expropriation by the Central Land Expropriation Committee on January 14, 2010;

- Commencement date of expropriation: March 9, 2010

- Amount of compensation: 377,800,000 won

(c) Ruling by the Central Land Tribunal on June 11, 2010;

- The same as the acceptance ruling

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

(1) The plaintiff

On December 31, 2002, the Plaintiff obtained permission to divert the farmland of this case from the head of Yangju-gun and used it as a site. As such, the compensation for the land of this case shall be calculated on the basis of “site” rather than “former”.

B. Doz.

Since the land of this case was illegally changed by the plaintiff, it should be assessed as "the preceding", which is the current use at the time of such change of form and quality.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i)Recognitions

① On December 6, 2002, the Plaintiff filed an application for permission to divert the farmland of this case with respect to the instant land and the instant land on the ground of 17m2 from among the instant land and the instant Ri 380m2, which is located within a 380m3,00m2. The construction and business plan submitted by the Plaintiff at the time of the said application is indicated as the scheduled completion date around January 30, 2003 as follows: (a) construction on the instant land and the instant land on the ground of 17m2 from among the instant land and the instant Ri 380m2.

② On December 31, 2002, the Plaintiff obtained permission to divert farmland of this case from the Yangju market pursuant to Article 36 of the former Farmland Act (amended by Act No. 6793, Dec. 18, 2002). According to the conditions attached to the above permission to divert farmland, the Plaintiff shall pay KRW 10,475,100 to the farmland creation cost under the provisions of the former Farmland Act within the payment period, and the Corporation shall implement the project plan in accordance with the outline of the project plan submitted at the time of the application for permission, and if the Plaintiff wishes to change the facilities to be installed, use, and purpose of exclusive use, it shall obtain the permission for change, and if it violates this, it shall be subject to measures such as revocation of permission or restoration

③ On March 19, 2003, the Plaintiff paid KRW 10,475,100 to the Plaintiff for farmland creation cost, and the Yangju Mayor sent the permit to divert farmland to the Plaintiff on the same day.

④ At present, the intermediate part of the instant land is a steel structure and a prefabricated building with a floor area of approximately 101.8 square meters (hereinafter “instant temporary building”). Of the instant land, parts other than the instant temporary building site are packed with concrete with a floor area of 16 square meters, and the remainder is soil or stone. In addition, the front signboard of the instant land is indicated “△△△△ Branch” on the front signboard.

⑤ The Plaintiff did not complete any reporting and permission procedures with respect to the construction of the instant temporary building.

6. The two owners of the instant land did not impose any administrative disposition on the Plaintiff regarding the violation of any condition attached to the permission to divert farmland, such as the construction of the instant temporary building, which is not a kindergarten building, on the ground of the instant land.

7. According to the result of the market price appraisal entrustment with respect to the land of this case by the first instance court and the court, the price according to each appraisal standard for the land of this case is as follows

The floor area (Article 101.8 square meters) of the instant building in total of KRW 441,70,000 on the instant land in total of KRW 656,00,000 on the instant land in total prior to the price assessment standards included in the main text of the same, shall be 463,515,740 on the floor area (Article 101.8 square meters) of the instant building in total of KRW 368,10,00 on the instant land in total, and the remainder of the building shall be 550,778,700 on the land, which is assessed as miscellaneous land in total as miscellaneous land.

[Ground of recognition] Evidence as mentioned above, evidence Nos. 3-1 through 8, evidence Nos. 4-1 through 4, evidence Nos. 4-1 through 6, evidence Nos. 4-1 through 5, each of the statements and images Nos. 5, the results of the entrustment of market price appraisal by the court of first instance and the court of first instance, fact-finding with respect to each of the two main markets by the court of first instance and the court of second instance

Shes-related legal principles

Article 70(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Public Works Act”) provides that “The amount of compensation for land shall, in principle, be calculated by taking into account the real situation at the time of price and the objective situation by the general method of use, but the temporary conditions of use, etc. shall not be taken into account.” Article 24 of the Enforcement Rule of the Public Works Act delegated by Article 24 of the same Act provides that “The amount of compensation for land shall be appraised by taking into account the situation at the time when an unauthorized building, etc. is constructed or the land shall be changed without obtaining permission or filing a report pursuant to the relevant Acts and subordinate statutes, such as the Building Act, or the National Land Planning Act, with respect to the land, the form and quality of which shall be changed without obtaining permission or filing a report.”

In addition, in principle, the amount of compensation for land under the Land Compensation Act shall be calculated by the actual state of use. Thus, in order to calculate the amount of compensation due to the original state of use or the current state of use at the time of changing the form and quality of land for the reason that the land to be expropriated is temporary or illegal land for the reason that it is a land changing its form and quality, it is insufficient to prove that the land to be expropriated is an illegal land changing its form and quality, and to recognize that the land to be expropriated is an illegal land changing its form and quality, it is insufficient to simply say that the form and quality of the land to be expropriated are different from the land in the public register, and even if there was a permission or duty to report under the relevant Acts and subordinate statutes at the time of changing the form and quality of the land to be expropriated, it is necessary to prove that the change of form and quality was made without obtaining permission or filing a report (

• Whether this case’s land has been unlawfully changed in form and quality

① First, the Defendant asserts that the alteration of the form and quality of the instant land constitutes an unlawful alteration of the form and quality of the land, since the Plaintiff constructed the instant temporary building without obtaining permission for alteration of farmland diversion.

Article 36 (1) of the former Farmland Act provides that "Any person who intends to divert farmland shall obtain permission to divert farmland and any change in important matters prescribed by Presidential Decree shall obtain such permission." Article 41 subparagraph 2 of the same Act provides that "Where a person who has obtained permission to divert farmland violates any condition of permission or changes a business plan or scale without permission or report, the permission may be revoked or the permission may be revoked, the scale of the business may be reduced, or other necessary measures may be ordered." Article 37 of the former Enforcement Decree of the Farmland Act (amended by Presidential Decree No. 20677 of Feb. 29, 2008) provides that "The change in the scale of the facility that he/she intends to install by diverting farmland as one of the important matters provided for in Article 36 (1) of the former Enforcement Decree of the Farmland Act (excluding cases where the total floor area of the farmland to be changed is less than 50 square meters or not more than 1/100 of the total total floor area of construction)."

According to the above facts, although the defendant added the above contents to the plaintiff at the time of permission to divert the farmland of this case, the plaintiff constructed the temporary building of this case which is different from the construction and business plan submitted at the time of application for permission to divert the farmland of this case without obtaining related permission, such as permission to divert the farmland of this case, and thus, the plaintiff violated the conditions of permission to divert the farmland of this case. However, according to the above provisions of the Farmland Act, the original permission to divert the farmland of this case is not invalidated or revoked as a matter of course because it violated the conditions of permission, and it is only possible to order necessary measures, such as reduction of business size, etc., or revoke the permission. Thus, since the temporary building of this case, which is not a kindergarten building, was constructed on

Therefore, the mere fact that the Plaintiff constructed the instant temporary building without permission to alter the farmland use of the instant land does not constitute an unlawful alteration of the form and quality of the instant land. Therefore, this part of the Defendant’s assertion is without merit

② Next, the Defendant asserts that, since the Plaintiff did not commence development activities of the instant land before the enforcement of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”), permission to engage in development activities under the National Land Planning and Utilization Act should be additionally obtained to change the form and quality of the instant land. The Plaintiff did not follow the aforementioned procedures, and therefore, the alteration of the form and quality of the instant land was unlawful.

The National Land Planning and Utilization Act was enacted on February 4, 2002 and enforced on January 1, 2003. Article 56(1)2 of the National Land Planning and Utilization Act provides that “Any person who intends to alter the form and quality of land shall obtain permission from the head of Si/Gun.” In cases of farmland located in the previous non-urban area and does not require permission for development activities under the Urban Planning Act, permission for development activities under the said Act was required. However, Article 18(1) of Addenda of the National Land Planning and Utilization Act provides that “this Act shall not apply to any person who is engaged in development activities falling under any of subparagraphs of Article 56(1) in an area other than the urban planning zones under the former Urban Planning Act at the time of the enforcement of this Act, and Article 18(1) of Addenda of the National Land Planning and Utilization Act provides exceptions to the application of the National Land Planning Act. In full view of the purport of the aforementioned provisions, it is difficult to deem that “a person who has obtained permission to change the form and quality of land” constitutes “a person engaged in development activities” and only.

According to the facts acknowledged above, the plaintiff obtained a legitimate permission for changing the form and quality of farmland under the former Farmland Act. Since the plaintiff does not need to obtain a new permission for development activities under the National Land Planning Act, the plaintiff cannot be deemed to have changed the form and quality of the land of this case without permission for development activities under the National Land Planning Act. Therefore, this part of the defendant's assertion is without

x) Whether the instant temporary building constitutes an illegal building and the current status of the instant temporary building site;

The defendant asserts that only illegal temporary buildings are constructed on the land of this case, and the plaintiff argues to the purport that the current state of the land of this case should be assessed as a site because it is merely a construction of the temporary building in lieu of the kindergarten building due to various circumstances.

In light of the above facts, the current status of the instant temporary building is inconsistent with the plan for the construction of the instant temporary building submitted by the Plaintiff, and the Plaintiff did not follow the procedures for permission, reporting, etc. prescribed by the relevant statutes for the construction of the instant temporary building. Therefore, the instant temporary building constitutes an illegal building. Therefore, pursuant to Article 70(2) of the Public Works Act and Article 24 of the Enforcement Rule of the Public Works Act, the current status of the instant temporary building should be assessed by considering the situation at the time when the instant temporary building was constructed.

According to Article 5 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 21881, Dec. 14, 2009), the definition of “building site” means a permanent building, which includes cultural facilities such as residential, office, store, museum, theater, art gallery, and the site for the garden and attached facilities connected thereto, and the land which is completed by the Housing Site Construction Work in accordance with the National Land Planning Act, and is classified as miscellaneous land. ② The time when the temporary building of this case is constructed is not clear. However, considering that the temporary building of this case is not consistent with the kindergarten building plan submitted by the Plaintiff, and its purpose of the entire pleadings, the temporary building of this case constitutes a temporary building of this case which is temporarily connected with the whole area of this case. ③ The total floor area of the temporary building of this case is 10.1% of the total area of the land of this case, and the remaining part of the building site of this case, which is hard to be used within the scope of the entire land of this case or the remaining part of the site of this case.

(v) the filing of a complaint;

The Defendant is obligated to pay to the Plaintiff 63,900,000 won (=441,700,000 won - 377,800,000 won) and to pay each interest rate of 20% per annum under the Civil Act from March 10, 2010, which is the date following the date of the commencement of expropriation of the instant case, to November 6, 2012, where it is deemed reasonable for the Defendant to dispute on the existence and scope of the obligation to perform as to whether the obligation exists and the scope thereof.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed for reasons. Since the part against the defendant who ordered payment in excess of the above recognition amount in the judgment of the court of first instance differs from this conclusion, it is revoked and the plaintiff's claim corresponding to the revoked part is dismissed. The defendant's remaining appeal is dismissed for reasons.

[Attachment Omission of Related Acts]

Judges Sung Pung-tae (Presiding Judge)