Republic of Korea (Law Firm LLC, Attorneys Seo-sl et al., Counsel for the plaintiff-appellant)

The Central Land Expropriation Committee

May 24, 2018

Seoul Administrative Court Decision 2017Guhap3724 decided January 12, 2018

1. Revocation of a judgment of the first instance;

2. The Defendant’s decision of use on October 13, 2016 and the decision of rectification on December 8, 2016, as stated in the separate sheet owned by the Plaintiff, shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

This court's reasoning is that the corresponding part of the judgment of the court of first instance (section 5 through 5) is the same as that of the corresponding part of the judgment of the court of first instance (section 2, 5, 5). Thus, this court's reasoning is accepted under Article 8 (2) of the Administrative Litigation Act

2. Relevant statutes;

The entries in the attached statutes are as follows.

3. Determination

(a) Whether any State forest required under the State Forest Act may be expropriated or used under the Railroad Construction Act and the Land Compensation Act;

Article 12 (1) of the Railroad Construction Act provides that "a project operator may expropriate or use land, goods, or rights (hereinafter referred to as "land, etc.") prescribed by Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Land Compensation Act"), if necessary for a railroad construction project, and the former part of paragraph (2) of the same Article provides that "where the Minister of Land, Infrastructure and Transport approves and announces an implementation plan, he/she shall be deemed to have granted a project approval under Article 20 (1) of the Land Compensation Act and a public announcement of project approval under Article 22 of the same Act" and paragraph (4) of the same Article provides that "Except as otherwise provided for in this Act, the Land Compensation Act shall apply mutatis mutandis to the expropriation or use of land, etc. under paragraph (1)." According to such provisions, a project operator of a railroad construction project has general rights to expropriate or use land, if necessary for the project, as prescribed by the Land Compensation Act."

However, in full view of the following circumstances known from relevant statutes, etc., it is reasonable to deem that a project operator of a railroad construction project may not expropriate or use any permanent state forest stipulated in the former State Forest Administration and Management Act (amended by Act No. 14357, Dec. 2, 2016; hereinafter “State Forest Act”) in accordance with the Land Compensation Act.

(1) The provisions of Article 3 of the Railroad Construction Act shall apply to the construction of railroads except as otherwise provided for in other Acts. Accordingly, the application of the Railroad Construction Act and the Land Compensation Act applied mutatis mutandis thereto may be excluded, except as otherwise provided for in other Acts.

(2) Article 6 (1) of the State Property Act classify state property into administrative property and general property, and Article 6 (2) of the same Act classify the types of administrative property into public property, public property, corporate property, and property for preservation, and Article 6 (3) of the same Act designates all State property other than administrative property as general property. Meanwhile, Article 16 (1) of the State Property Act classify state property into permanent state property and non-permanent state property, and requires the Administrator of the Korea Forest Service to manage state property according to such classification. Article 6 (3) of the State Property Act defines that state property shall be deemed administrative property under Article 6 (2) of the State Property Act, and non-permanent state property shall be deemed general property under Article 6 (3) of the State Property Act.

Pursuant to such classifications, Article 11(1) of the State Property Act provides that any property for which private rights have been created shall not be acquired as State property unless the said private rights have been extinguished. Article 11(2) of the State Property Act prohibits the establishment of private rights on State property; Provided, That Article 27(1) of the State Property Act permits the establishment of private rights on State property only in the case of general property, as prescribed by Presidential Decree. In addition, Article 27(1) of the State Property Act exceptionally permits exchange or transfer of administrative property only to “it is intended to manage the exchanged property as administrative property,” “it is intended to transfer the property to a local government which is required for direct official or public use,” and Article 30(1) of the State Property Act provides that the use of administrative property shall, in principle, be subject to permission for use within the extent necessary for the performance of conservation purposes or not hindering its use or purpose. Article 17 of the State Property Act provides that the permanent state property shall not be leased, sold, exchanged, or transferred, or shall not be established, while Article 20 and Article 21 of the State Property Act permit.

As can be seen, the State Property Act strictly divides state property into administrative property and general property. In particular, the State Property Act prohibits disposal of state property in principle and prohibits the creation of private rights to administrative property, and it differs from the general property, such as absolute prohibition, etc., because administrative property is a property that is preserved by a direct means or special needs for the implementation of administrative purposes of the State, and thus, if it is treated as an object of private transactions, it is likely to infringe on the administrative objectives of such State. Thus, it can be deemed that the State Property Act considers permanent state property as administrative property and prohibits the establishment of private rights to such property, as in the State Property Act, to achieve administrative objectives through the strict preservation and management of permanent state property.

(3) However, according to the provisions of Article 45(1) and (2) of the Land Compensation Act, a project operator shall acquire the ownership of land or goods on the date of commencement of expropriation by expropriation and use [in the case of railroad construction projects, the Korea Rail Network Authority shall include railroad sites. Article 2 of the Korea Rail Network Authority Act and Article 3 subparag. 2 of the Framework Act on Railroad Construction] acquires the ownership of or right to use railroad facilities by expropriation or use under the Land Expropriation Act (see Article 8(1) of the Korea Rail Network Authority Act). However, if a project operator obtains the ownership of or right to use land or goods on the condition that the State will comprehensively acquire the ownership of or right to use the relevant land or goods for the purpose of expropriation by consultation on the said land or goods (see Article 24(1) of the Korea Rail Network Authority Act, Supreme Court Decision 209Du8045, Nov. 10, 201). In other words, a project operator shall acquire the ownership of or right to use the relevant land on the condition that the land is subject to expropriate or use by consultation on the State Land Act.

(4) Specifically, where permanent state forests are to be used by the method of permission for use, in principle, the period of permission for use is restricted to five years (Article 35 (1) of the State Property Act); where the period of permission for use expires, the Minister of the Korea Forest Service may determine whether to renew such permission (Article 35 (2) of the State Property Act); where a person who has obtained permission for use neglects the preservation of permanent state forests, violates the purpose of use thereof, or violates the conditions of permission for use (Article 36 (1) of the State Property Act and Article 26 (1) of the State Forest Act). Furthermore, where a person who has obtained permission for use of permanent state forests causes property damage due to his/her negligence in managing permanent state forests, additional charges, other than usage fees, may be collected (Article 39 of the State Property Act). Furthermore, a person who has obtained permission for use of state forests, shall not install buildings or other permanent facilities for the purpose of restoring to original state forests, except where it is constructed on condition of donation, removal, or removal, as prescribed by Presidential Decree.

As such, in cases of the method of permission for use, permanent state forests can be efficiently managed in compliance with their original purpose of designation, while it would be impossible to manage and preserve such permanent state forests in accordance with the relevant laws and regulations if it is permitted to expropriate or use such permanent state forests in accordance with the Land Compensation Act.

(5) Article 21 (1) of the State Forest Act and Article 18 (1) 1 of the Enforcement Decree of the State Forest Act provide that where the Minister of the Korea Forest Service intends to use permanent state forests for infrastructure directly related to projects prescribed by the subparagraphs of Article 11 (2) of the Enforcement Decree of the State Forest Act, such as railroad projects, etc. in accordance with the standards prescribed by Presidential Decree, the Minister of the Korea Forest Service may permit the use of permanent state forests or lease non-permanent state forests, and Article 16 (4) of the State Forest Act and Article 11 (2) 2 of the Enforcement Decree of the State Forest Act provide that where permanent state forests under his/her jurisdiction are necessary for public works under the Land Compensation Act, such as railroad projects

As can be seen, when it is necessary to use permanent state forests for public activities such as railroad projects, the State Forest Act requires permission for use as administrative property under the State Property Act or re-classified state forests into non-permanent state forests. In other words, even if it is necessary to use permanent state forests for public activities in order to efficiently preserve and manage them, it should be subject to more strict permission for use that can be preserved and managed. However, if the Minister of the Korea Forest Service determines that it is necessary to lease, transfer, or establish private rights, etc. other than permission for use, taking into account the necessity of conservation of state forests, possibility of damage to state forests, necessity of use for public activities, etc., it should be re-classified into non-permanent state forests. If a project implementer can unilaterally expropriate or use permanent state forests pursuant to the Land Compensation Act, it would be likely that the administrative purpose of the said Minister of the Korea Forest Service and the conservation and management of state forests to be achieved through such discretionary authority, and it would be difficult to find out the reasons for unilateral expropriation of state forests under the premise that the use of permanent state forests should be re-permanent or non-permanent state forests.

(6) Article 13(2) of the Railroad Construction Act provides that “Any property owned by the State or a local government in a project zone included in the implementation plan may be leased or sold to a project implementer by a private contract, notwithstanding the State Property Act or the Public Property and Commodity Management Act.” However, this is merely a general competitive bid in the event that State property is leased or sold to a project implementer, and a private contract is exceptionally permitted (Articles 47(1), 31(1), and 43 of the State Property Act). However, it is difficult to interpret the provisions that grant a discretionary authority to a railroad construction project implementer as to whether a railroad construction project implementer is permitted to lend or sell any State property under a private contract for all State property, or to obtain a ruling of use or to conclude a loan contract for the purpose of securing the right to use State property.

7) Since the purpose of the Railroad Construction Act is to develop public welfare through the rapid expansion of a railroad transport network, there is a high need to expropriate and use land necessary for the expansion of a railroad network site. However, in light of the fact that the legislative purpose of the Act is to promote the national welfare following the efficient management and preservation of state forests and the need to expropriate and use new land is relatively low, it cannot be readily concluded that the necessity of public interest in railroad construction projects under the Railroad Construction Act is higher than that of the public interest in the preservation and management of state forests under the State Forest Act solely by simply comparing whether the Railroad Construction Act and the State-owned Land Act grant the general right to expropriate and use and use, and that such circumstance alone is insufficient to readily conclude that the need for public interest in railroad construction projects under the Railroad Construction Act is higher than that of the public interest in the preservation and management of state forests under the State Land Act (i.e., providing for strict preservation and management of state forests in the State Land Act and the State Property Act, even if necessary for the public interest, in practice, it does not interfere with the implementation of the railroad construction projects.

8. In the meantime, the method of permission for use under the State Forest Act has been taken with respect to the implementation of railroad construction projects, and there is no evidence to deem that there has been considerable obstacles to the implementation of railroad construction projects. Nevertheless, there is no evidence to deem that the national necessity for railroad construction projects has changed to the extent that a railroad construction project operator should be permitted to expropriate and use land under the Land Compensation Act prior to the preservation and management of state forests, or that there has been no evidence to deem that the national situation has changed to the extent that the national necessity for

B. Whether the judgment of this case is unlawful on the remaining land excluding 25 forest land in Jin Changwon-gun, Jin Changwon-gun, Jinwon-gun, Jinwon-gun

Under the premise of the aforementioned legal principles, the remaining land excluding the 25 forest land in the Jinwon-gun, Jinwon-gun, Jinwon-gun (hereinafter “Jinsan 25 forest land”), among the instant forest land, is an administrative property under the State Property Act as a permanent state forest. The instant adjudication that decided to use the forest in accordance with the Land Compensation Act is unlawful in violation of the relevant provisions of the State Property Act and the State Forest Act.

C. Whether the ruling of this case on the forest land of this case is unlawful in the judgment of this case as to the forest land of this case

In light of the following circumstances, it is reasonable to view the instant ruling to be used as a site for railroad facilities under the principle of proportionality 1 to 25 to 201 to 25 to 201 to 201 to 201 to 25 to 201 to 201 to 201 to 30 to 201 to 30 to 25 to 201 to 30 to 202 to 20 to 25 to 202 to 20 to 205 to 30 to 25 to 201 to 20 to 30 to 25 to 201 to 25 to 30 to 25 to 30 to 25 to 200 to 20 to 25 to 20 to 25 to 30 to 25 to 20 to 30 to 25 to 20 to 30 to 25 to 20 to 20 to 25 to excluding the instant forests and fields.

4. Conclusion

Thus, the ruling of this case should be revoked because it is unlawful, and the judgment of the court of first instance shall be revoked as it is unfair to conclude otherwise, and the ruling of this case shall be revoked.

[Attachment]

Judges Kim Jong-ju (Presiding Judge)