(영문) 대법원 2018.6.15.선고 2018두35681 판결

Of the judgment below, the part of the claim for purchase of remaining land and the claim for compensation for loss due to price decrease is reversed, and that part of the case is remanded to the Daegu High Court. The remaining appeal is dismissed

Reasons

The grounds of appeal are examined.

1. As to the claim for purchase of remaining land and the claim for compensation for loss due to price decrease

A. In full view of the details and legislative purport of Articles 73, 74, and 34, 50, 61, and 83 through 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), in order for a landowner to receive compensation from a project operator due to a decrease in the price of the remaining land pursuant to Article 73 of the Land Compensation Act, or to exercise the project operator’s right to demand purchase of the remaining land pursuant to Article 74 of the Land Compensation Act, the landowner may receive remedy pursuant to Articles 83 through 85 of the Land Compensation Act only when he/she is dissatisfied with the adjudication without such adjudication procedure (see, e.g., Supreme Court Decision 2012Du24092, Sept. 25, 2014; 2012Du24092, Sept. 25, 2014).

Therefore, a landowner should, in principle, undergo a judgment on the claim for compensation for losses due to a decrease in the price of the remaining land or before filing a lawsuit claiming for purchase of the remaining land: Provided, That the purport that such a judgment ought to be made is to efficiently operate the procedure by requiring an administrative agency to make a professional judgment as to whether the compensation for losses incurred due to the implementation of public works and the scope of losses. Therefore, even if a judgment was not made at the time of filing a lawsuit, if a judgment was not made at the time of closing argument at the time of closing argument at the trial court, the defect in the lawsuit can be deemed as cured (see, e.g., Supreme Court Decision 2006Du9832, Feb. 15, 2008). As such, whether a judgment procedure was made as a requirement for a lawsuit claiming compensation for losses falls under the matter ex officio examination (see, e.g., Supreme Court Decision 82Nu

B. According to the records, the Plaintiff asserted in the preparatory document dated October 13, 2017, which was submitted before the closing of argument in the lower court, that “after the institution of the instant lawsuit, the Central Land Expropriation Committee applied for a ruling seeking the claim for purchase of the remaining land in this case and the compensation for losses due to price decrease, and made a ruling on August 10, 2017.” Therefore, the lower court should have deliberated upon whether the Plaintiff satisfies the litigation requirements and accordingly. Nevertheless, without examining and determining the Plaintiff’s assertion that the Plaintiff followed the procedure of a ruling on the claim for purchase of the remaining land and the claim for compensation for losses due to price decrease, the lower court upheld the first instance judgment that determined that the Plaintiff’s claim for purchase of the remaining land in this case and the claim for compensation for losses due to price decrease was unlawful by failing to undergo the adjudication procedure.

In so determining, the lower court erred by misapprehending the legal doctrine on the legal requirements for the claim for purchase of remaining land and for compensation for losses due to price decrease, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

2. As to the claim to increase the land compensation and the claim to compensate for the discontinuation of business

A. The lower court dismissed the Plaintiff’s claim for compensation for damages arising from the closure of the livestock industry on the grounds that it is insufficient to recognize that (i) partially accepted the Plaintiff’s claim for the increase of compensation for the instant land and the instant obstacles according to the result of the commission of appraisal by the first instance appraiser, and (ii) the Plaintiff’s livestock industry was operated prior to the date of project approval, and (iii)

B. This part of the grounds of appeal is merely an error of the selection of vapors and determination of the value of evidence, which belong to the free trial of the fact-finding court. Furthermore, even when examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by failing to exhaust all necessary

3. Conclusion

Of the lower judgment, the part of the claim for purchase of remaining land and the claim for compensation for losses due to price decrease is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices