[1] Whether a person subject to compensation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor or a project implementer may file an administrative suit by asserting the grounds for objection individually only to part of the several compensation items (affirmative), and the scope of the court’s trial in a lawsuit for the increase or decrease of compensation amount / In a case where the court examines the compensation items for which a specific objection is raised, such as conducting an appraisal, etc., and where it is found that the amount of compensation determined in the adjudication is insufficient in the case of a partial compensation item and that in the case of another compensation items, it is excessive in the case of

[2] In a case where the victim raised a lawsuit claiming the increase of compensation against multiple compensation items, but the court’s appraisal amount on some compensation items has become less than the adjudication amount, whether the victim may make a lawsuit claiming the exclusion of the pertinent compensation items from the court’s trial scope by either making a statement to the person who has no ground for filing an objection against the pertinent compensation items or withdrawing an objection against the pertinent compensation items (affirmative) / In a case where the victim expressed his/her intent as above, in the expectation that the project implementer would realize the right to claim the reduction through the lawsuit claiming the increase of compensation amount, and the victim did not file a separate lawsuit claiming the reduction of compensation within the litigation period, whether the project implementer may declare his/her intent in the lawsuit claiming the reduction of compensation amount by applying the result of the court’s appraisal (affirmative)

[1] When the court examines and determines losses of various lands, goods, rights, or businesses (whether they are subject to compensation as well as basic units to examine and determine the amount of compensation) for each person subject to compensation in a single adjudication, the person subject to compensation or the project implementer does not necessarily have to have any objection to the whole adjudication, and where only some of the several compensation items are dissatisfied with, the court may file an administrative litigation by asserting the reasons for objection individually. In such a lawsuit on the increase or decrease of compensation amount, the scope of adjudication by the court is limited to the compensation items for which the parties to a lawsuit specifically filed an objection within one adjudication.

As a result of an examination by the court on the compensation items for which specific appeal has been filed, if the amount of compensation determined in the adjudication is insufficient in the case of some compensation items, and if it is found to be excessive in the case of other compensation items, the court may allow the utilization between the compensation items by item, determine the total amount of compensation by adding up the excessive portion and the insufficient portion to the compensation items.

[2] Where the victim raised a lawsuit claiming the increase of compensation against several initial compensation items, but the assessed amount as a result of the appraisal conducted by the court on some compensation items falls short of the amount of compensation determined by the adjudication, the victim may either make a statement to the person against whom the appeal for dissatisfaction regarding the pertinent compensation items is groundless, or make a statement to the person who excluded the pertinent compensation items from the scope of the adjudication by simply withdrawing the appeal for dissatisfaction.

Meanwhile, a project implementer’s right to file a claim for the reduction of compensation regarding a specific compensation item shall be exercised by means of filing a claim for the reduction of compensation within the period for filing a lawsuit prescribed in Article 85(1)1 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, in cases where a person subject to compensation has already filed a lawsuit seeking the increase of compensation as he/she is dissatisfied with various compensation items that include the above compensation items before the period for filing a lawsuit against the project implementer expires, the project implementer may be determined by adding excessive and insufficient parts to the above lawsuit in accordance with the utilization doctrine of compensation items. As such, it is reasonable to realize his/her right to claim the reduction of compensation through a lawsuit seeking the increase of compensation, instead of filing a separate lawsuit seeking the reduction of compensation for the same compensation item in duplicate.

In light of the purport of allowing the diversion of compensation items in a lawsuit claiming an increase or decrease of compensation items and the expectation of realizing the right to claim a reduction of compensation amount through a lawsuit claiming an increase or decrease of compensation amount, and the disadvantage suffered by the project operator by the unilateral declaration of intent of the victim requesting the exclusion of specific compensation items from the scope of adjudication after the period for filing the lawsuit expires, the project operator did not file a separate lawsuit claiming a reduction of compensation amount for the aforementioned reasons. In a case where the project operator expresses his/her intent in a lawsuit claiming the exclusion of the compensation items from the scope of adjudication by the court, if the appraised value conducted by the court is smaller than that of the adjudication procedure, the project operator is deemed to have expressed his/her intent in a lawsuit that allows the exclusion of the compensation items from the scope of adjudication. Accordingly, if the court’s appraisal result on the compensation items disadvantageous to the victim is deemed justifiable, it is reasonable to deem that the excessive amount calculated by applying the aforementioned excessive amount from the compensation amount to be deducted from the compensation amount.

This legal doctrine can be equally applied to cases where a project implementer filed a lawsuit seeking reduction of compensation by dissatisfied with various compensation items, but the court’s appraisal results on certain compensation items are disadvantageously unfavorable.

[1] Article 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 92Nu5331 Decided September 8, 1992 (Gong1992, 2898), Supreme Court Decision 2014Du1451 Decided November 13, 2014

Plaintiff 1 and one other (Law Firm Cheongh, Attorney Shin Jae-chul, Counsel for the plaintiff-appellant)

Korea Rail Network Authority (Law Firm Yangyang, Attorneys Kim Mine-hun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Nu72572 decided March 28, 2017

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. A. A. Any project operator, landowner or person concerned is dissatisfied with an adjudication under Article 34 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), may file an administrative litigation within 60 days from the date of receipt of a written adjudication; and within 30 days from the date of receipt of a written adjudication on an objection if such administrative litigation is filed; and where such administrative litigation is a lawsuit on increase or decrease of compensation, the project operator shall be the landowner or person concerned; and if the project operator is a project operator, the landowner or person concerned shall be the defendant respectively (Article 85(1)1 and (2) of the Land Compensation Act).

When a trial or determination has been made with respect to losses of various lands, goods, rights, or businesses (as such, whether the compensation is subject to compensation, and furthermore, the basic unit to examine and determine whether the compensation amount is much, hereinafter referred to as “compensation items”), the person subject to compensation or the project implementer does not necessarily have to have any objection to the whole adjudication, and where only some of the several compensation items are dissatisfied with, an administrative litigation may be instituted by asserting the reasons for objection individually. In such a lawsuit for increase or decrease of compensation amount, the scope of adjudication by the court is limited to the compensation items for which the parties to the lawsuit specifically filed an objection within a single adjudication.

As a result of the court’s deliberation, such as conducting an appraisal on specific compensation items, if the amount of compensation determined in the adjudication is underfinite in some compensation items, and if it is found to be excessive in the case of other compensation items, the court may allow the utilization between the compensation items, thereby allowing the sum of excessive and insufficient parts to be determined as a justifiable compensation (see, e.g., Supreme Court Decision 92Nu5331, Sept. 8, 192).

B. In a case where the victim raised a lawsuit claiming the increase of compensation against the multiple initial compensation items, but the assessed amount as a result of the appraisal conducted by the court on a part of the compensation items becomes less than the amount of compensation determined by the adjudication, the victim may either make a statement to the person against whom the appeal of dissatisfaction regarding the pertinent compensation items is groundless, or make a statement to the person who requested the exclusion of the pertinent compensation items from the scope of the adjudication by simply withdrawing the appeal of dissatisfaction.

Meanwhile, a project implementer’s right to claim reduction of compensation items is a principle for exercising the right to file a claim for reduction of compensation within the period for filing a lawsuit prescribed in Article 85(1)1 of the Land Compensation Act. However, in cases where a victim files a lawsuit seeking increase of compensation by dissatisfied with various compensation items, including the above compensation items, prior to the lapse of the period for filing a lawsuit against the project implementer, the project implementer may determine that the reasonable amount of compensation for the above compensation items can be determined by adding excessive and insufficient parts to the above lawsuit in accordance with the utilization doctrine of compensation items. Therefore, it is reasonable to realize the right to claim reduction of compensation, instead of filing a separate lawsuit seeking reduction of compensation for the same compensation items in duplicate, it is reasonable to realize the right to claim reduction through the lawsuit seeking increase of compensation filed by the victim.

In light of the purport of allowing the diversion of compensation items in a lawsuit claiming an increase or decrease of compensation items and the expectation of realizing the right to claim a reduction of compensation amount through a lawsuit claiming an increase or decrease of compensation amount, and the disadvantage suffered by the project operator by the unilateral declaration of intent of the victim requesting the exclusion of specific compensation items from the scope of adjudication after the period for filing the lawsuit expires, the project operator did not file a separate lawsuit claiming a reduction of compensation amount for the aforementioned reasons. In a case where the project operator expresses his/her intent in a lawsuit claiming the exclusion of the compensation items from the scope of adjudication by the court, if the appraised value conducted by the court is smaller than that of the adjudication procedure, the project operator is deemed to have expressed his/her intent in a lawsuit that allows the exclusion of the compensation items from the scope of adjudication. Accordingly, if the court’s appraisal result on the compensation items disadvantageous to the victim is deemed justifiable, it is reasonable to deem that the excessive amount calculated by applying the aforementioned excessive amount from the compensation amount to be deducted from the compensation amount.

This legal doctrine can be equally applied to cases where a project implementer filed a lawsuit seeking reduction of compensation by dissatisfied with various compensation items, but the court’s appraisal results on certain compensation items are disadvantageously unfavorable.

2. Review of the reasoning of the lower judgment and the reasoning of the first instance judgment and the record reveals the following circumstances.

A. The Plaintiffs filed a claim for the payment of KRW 100,000 per head and damages for delay at the initial complaint, and the instant claim clearly expressed their intent to expand the claim amount by each item of compensation based on the results of the court’s appraisal. (1) The instant claim for expropriation of several parcels of land to be admitted as a site for public works and (2) the price decrease compensation for the remaining land (hereinafter “section 1” and “II”).

B. Upon receipt of each of the appraisal results on December 15, 2015 and April 11, 2016, the Plaintiffs filed an application for an appraisal on the part ① and the part ②, and submitted an appraisal result, on August 11, 2016, with the court on August 11, 2016, the Plaintiffs submitted to the first instance court an application for an alteration of the purport and cause of the claim to the effect that “the court’s appraisal amount in respect of the part ② is less than the amount of the judgment, and thus, “the withdrawal of the claim amount” in this part, and ② the claim amount shall be expanded to the amount of the court’s appraisal amount.” This was served on the Defendant on August

C. Accordingly, on August 25, 2016, the Defendant submitted a preparatory document stating that “(i) consent to the withdrawal of the claim for the portion,” and that “The reasonable amount of compensation should be calculated by adding excessive and insufficient parts, by permitting the utilization of compensation items between the portion and the portion between the parties,” according to the result of the court’s appraisal, to the first instance court. This was served on the Plaintiffs on the same day.

D. On August 31, 2016, at the third date for pleading of the first instance trial, which was held on August 31, 2016, the Plaintiffs stated an application for modification of the purport and cause of the claim as of August 11, 2016, and the Defendant stated a preparatory document as of August 25, 2016.

E. The first instance court calculated a reasonable amount of compensation by allowing the use of items between the parts (1) and (2). Plaintiff 1’s claim was partially accepted, and Plaintiff 2’s claim was entirely dismissed.

F. On the other hand, the court below accepted the plaintiffs' claim on the ground that ① the withdrawal or withdrawal of a partial claim is a substantial fact in the court, and thus, ① is excluded from the object of a trial in the court, and ② is not allowed the use of item between the parts and ②.

3. A. Examining the above circumstances in light of the legal principles as seen earlier, it is determined as follows.

(1) The Plaintiffs did not specifically specify the claim amount in the original complaint, and, based on the claim purport and the application for modification of the cause of the claim on August 11, 2016, it is reasonable to deem such declaration of intent to be a withdrawal of the allegation, rather than a partial withdrawal of the lawsuit that entails the reduction of the claim amount. Accordingly, it is unnecessary to obtain the consent of the other party.

(2) However, the Defendant asserted, through the preparatory brief dated August 25, 2016, that “A reasonable amount of compensation should be calculated by adding up excessive and insufficient parts by permitting the diversion of items between the ① and the ② parts.” If the court recognizes that the result of the court’s appraisal on the compensation items disadvantageous to the victim is justifiable, it is reasonable to deem that the excessive calculated amount should be deducted from the amount of compensation calculated by deducting the excessive calculated amount from the amount of compensation, thereby constituting an expression of intent in a lawsuit, which would make the difference between the excessive and insufficient parts of the compensation items. Therefore, the lower court should have determined the legitimacy of such assertion.

B. Nevertheless, the lower court: (a) concluded that the part was excluded from the subject matter of a judgment by the lower court on August 11, 2016 due to the Plaintiffs’ partial withdrawal or withdrawal of a lawsuit regarding the part; and (b) ordered the payment of increased compensation solely on the ground that the Defendant’s assertion on the part was insufficient, without further examining and determining specifically based on the legal doctrine as seen earlier, on the grounds that (a) the amount of compensation set in the judgment is excessive; and (b) the amount of compensation set in the judgment on the part was insufficient.

The lower judgment erred by misapprehending the legal doctrine on the computation of compensation for losses in litigation, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)