[1] In a case where the amount of compensation is calculated by the current use at the time of changing the form and quality due to the "illegal land changing its form and quality" under Article 24 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the burden of proof and degree of proof as to the fact

[2] In a case where the executor of a national rental housing complex development project calculates the amount of compensation according to the result of appraisal of the appraisal of forest land which was previously developed as a forest since the land of Gap, the source of which is the actual state of use, was unlawfully altered, the case affirming the judgment below rejecting the project operator's assertion that the land was illegally changed

[1] According to Article 70(2) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, and Article 24 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the amount of compensation for land should be calculated according to the actual state of use. Thus, in order to calculate the amount of compensation due to the actual state of use of land subject to expropriation is temporary or illegal change of form and quality or the current state of use at the time of change of form and quality, the land subject to expropriation must be proved to be illegal change of form and quality. In addition, in order to recognize land subject to expropriation as illegal change of form and quality, it is insufficient to prove that the form and quality of land subject to expropriation are different from that on the public register, there is a permit or duty to report under the relevant Acts and subordinate statutes at the time of changing the form and quality of land subject

[2] In a case where the implementer of a national rental housing complex development project calculated the amount of compensation according to the result of the appraisal of appraisal by deeming the land of Gap, which is an over-water source as a forest before the development as a forest which has been illegally altered in its form and quality, the case affirming the judgment below rejecting the claim of the project implementer that the land was illegally altered in its form and quality on the ground that the said land is subject to permission due to the said land falling under the forest reserve or the electric cultivation of forest exceeding 20 degrees and above as it was implemented at the time when the land was developed as an over-water source, on the ground that there is no proof of such fact, and that the felling alone does not constitute a change in the form and quality of the land due to cutting, banking, suspension, etc., and there is no permission or report necessary for deforestation in the course of the development, and thus, it cannot be deemed an illegal land alteration

[1] Article 70(2) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 24 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 70(2) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 24 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works

Plaintiff (Law Firm Seosan, Attorneys Jin-jin et al., Counsel for the plaintiff-appellant)

Incheon Urban Corporation (Law Firm Han & Yang LLC, Attorneys Kim Sung-hee, Counsel for defendant-appellant)

Seoul High Court Decision 2010Nu17917 decided December 9, 2010

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

The grounds of appeal are examined.

Article 70(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “the 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 the price and the objective situation under the general method of use, but the temporary conditions of use, etc. shall not be considered.” Article 24 of the Enforcement Rule delegated by Ordinance of the Ministry of Land, Transport and Maritime Affairs, which stipulates the method of calculating and assessing the specific amount of compensation, provides that “The land which has altered form and quality without obtaining permission or filing a report under the relevant Acts and subordinate statutes, and has changed form and quality” (hereinafter “illegal land subject to expropriation”) without obtaining permission or filing a report under the relevant Acts and subordinate statutes, shall be appraised by presenting the current status as at the time of changing the form and quality of the land at the time of the change of the form and quality.” Accordingly, in order to calculate the amount of compensation for the land subject to expropriation by means of temporary change or change of the original form and quality of the land at the time of expropriation.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, such as the fact that the land of this case was developed by the former owner through the clearing of forest and field and was used as an orchard continuously thereafter. The court below rejected the defendant's assertion that the land of this case is an illegal land change in form and quality of land because the land of this case is subject to permission for land reclamation at least 20 degrees from the forest reserve or slope 20 degrees since the land of this case was developed as an orchard. The defendant's proof of this point is without any proof, and the felling alone does not constitute a change in form and quality of land due to cutting, banking, and suspension, etc., even if there was no permission or report necessary for the cutting of trees in the course of land reclamation and there was no permission or report necessary for the cutting of trees, such circumstance alone does not constitute an illegal land change.

In light of the aforementioned legal principles and relevant statutes, the above judgment below is just, and there is no error in the misapprehension of legal principles as to attribution of burden of proof as to land changing the form and quality or meaning of "illegal land changing the form and quality"

Meanwhile, the argument in the grounds of appeal as to the violation of the principle of good faith cannot be a legitimate ground of appeal, as it is first asserted by the Supreme Court. Moreover, even if the Plaintiff used the instant land as an orchard for a period of several hundred and twenty years, it cannot be deemed that the Plaintiff claimed compensation according to the current status when claiming compensation, and it does not contravene the principle of good faith or the principle of good faith.

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 Shin Young-chul (Presiding Justice)