[1] Whether a person may seek the cancellation of an objection on the ground that the period of litigation on the approval of an execution plan for national defense and military installations projects under the National Defense and Military Installations Projects Act is too excessive (negative)

[2] Criteria for the application of Article 6 (6) of the former Enforcement Rule of the Public Use Compensation Act, which is an exception to the principle of current status assessment

[1] The approval of an implementation plan for national defense and military installations projects under Articles 4(1), 5(2), 6(1), (2), and (3) of the National Defense and Military Installations Projects Act has the nature of an administrative disposition that establishes a certain right of expropriation on the condition that the project executor shall go through a certain procedure thereafter. The effect of the public notice of approval is to determine the scope of the object to be expropriated and make it possible for the right holder to oppose the present and future right holder. Thus, a landowner shall file a lawsuit on the ground that the approval of the implementation plan is illegal and unjust at the stage of the authorization and public notice of the execution plan, which is a prior disposition, and after the lapse of the period of litigation, the cancellation of the adjudication can not be claimed on the ground that it is unlawful and unjust, unless there are special circumstances to deem that it is a clear and significant defect in the authorization and public notice of the above implementation plan and that it is void automatically.

[2] Article 6 (6) of the former Enforcement Rule of the Act on the Compensation for Public Use and Compensation for Loss (repealed by Ordinance of the Ministry of Construction and Transportation No. 344 of Dec. 31, 2002) provides that "The land without permission or the land illegally altered form and quality shall be appraised at the time when the building, etc. without permission is constructed, or when the alteration of the form and quality of the land is made." (However, according to paragraph (4) of the Addenda of the above Enforcement Rule, the above provision provides that the compensation for the land with illegal alteration of form and quality or undeveloped land, etc. incorporated into the public project implementation zone at the time of the enforcement of the above Rule shall be governed by the previous provision despite the above amendment provision). The purpose of the above provision is to prevent the land owner or a third party from unfairly distorted using the current status through unlawful alteration of the form and quality so that the land owner obtains unfair profits, thereby, it is contrary to the former Act on the Compensation for Public Use and Compensation for Land, etc. (repealed by Article 2 of the Addenda of the Act of the Public Works Act).

[1] Articles 4(1), 5(2), and 6 of the National Defense and Military Installations Projects Act; Articles 14, 16, 75, and 75-2 of the former Land Expropriation Act (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. (Act No. 6656 of Feb. 4, 2002) / [2] Article 4(2) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Land, etc. (Act No. 6656 of Feb. 4, 2002), Article 6(6) of the former Enforcement Rule of the

[1] Supreme Court Decision 86Nu256 delivered on August 19, 1986 (Gong1986, 1248), Supreme Court Decision 87Nu395 delivered on September 8, 1987 (Gong1987, 1583), Supreme Court Decision 87Nu1141 delivered on December 27, 198 (Gong1989, 246), Supreme Court Decision 90Nu971 Delivered on November 26, 1991 (Gong192, 323), Supreme Court Decision 93Nu24230 delivered on May 24, 1994 (Gong194Ha, 1847), Supreme Court Decision 95Nu134136 delivered on April 26, 1996 (Gong194, 1847).

A

Central Land Tribunal and one other

Seoul Pedestrian District Court Decision 98Du28523 delivered on May 23, 2001

1. The original judgment shall be modified as follows.

A. On November 17, 1998, the part that the Central Land Expropriation Committee dismissed the Plaintiff’s objection in the objection ruling on the expropriation of 3,570 square meters of land B in Gangseo-si with the Plaintiff on November 17, 1998, which is equivalent to KRW 21,634,200, among the parts that the Plaintiff dismissed.

B. The defendant's Republic of Korea shall pay to the plaintiff 21,634,200 won with 5% per annum from May 8, 1998 to May 23, 2001; 25% per annum from the next day to the date of full payment; 5% per annum from May 8, 1998 to March 22, 2002 to the date of full payment; and 25% per annum from the next day to the date of full payment.

C. The plaintiff's remaining claims against the defendant Republic of Korea are dismissed.

2. The costs of the lawsuit are assessed against the Defendants in both the first and second instances.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

A. On November 17, 1998, the part of the rejection of the Plaintiff’s objection by the Central Land Expropriation Committee on the expropriation of 3,570 square meters of Gangseo-si B forest land and 3,570 square meters against the Plaintiff shall be revoked as KRW 21,634,200.

(b) The Defendant’s Republic of Korea shall pay to the Plaintiff 21,634,200 won and 25% interest per annum from September 13, 1996 to the full payment.

2. Purport of appeal

The following part of the judgment of the court below against the plaintiff corresponding to revocation and payment order shall be revoked.

A. On November 17, 1998, the part of the rejection of the Plaintiff’s objection by the Central Land Expropriation Committee on the expropriation of 3,570 square meters of Gangseo-si B forest land against the Plaintiff is revoked as KRW 19,742,100, among the parts dismissal of the Plaintiff’s objection.

B. Defendant Republic of Korea shall pay to the Plaintiff 19,742,100 won with 25% interest per annum from September 13, 1996 to the full payment.

1. Details of the ruling on an objection;

The following facts may be acknowledged either in dispute between the parties or in combination with Gap evidence 1, Gap evidence 4-1 through 5-1, Eul evidence 4-2, Eul evidence 5-1, Eul evidence 4-2, Eul evidence 5-1, Eul evidence 5-2, Eul evidence 5-1, 2, Eul evidence 8-1 through 3, Eul evidence 8-1, 9-2, Eul evidence 9-1, 9-2, and the whole purport of the pleadings, and there is no counter-proof otherwise.

(a)The land of a bridge that is flatd as a substitute located in the southwest-si, Gangnam-si (hereinafter referred to as the “instant land”) is located in the southwest-si, Gangnam-si, which is owned by the Plaintiff, and corresponds to a quasi-agricultural and forest area that has been used as a “forest” according to the land utilization plan. However, although the instant land was used as a “forest” according to its original land category, a military unit affiliated with the Defendant Republic of Korea changed its form and quality without due process for changing its form and quality in order to use it as a housing site for residents outside barracks and their families outside Korea and used it as a new house without due process for changing its form and quality.

B. On September 13, 1996, the Defendant Republic of Korea, upon approval of an implementation plan in accordance with Article 4 of the National Defense and Military Installations Projects Act, publicly announced this by the Ministry of National Defense under Article 196-48, and applied for adjudication to expropriate the instant land to the Central Land Expropriation Committee (hereinafter referred to as the “Defendant Central Land Expropriation”) as it had consulted with the Plaintiff to acquire the instant land included in the said project district but did not reach an agreement. On March 27, 1998, the Defendant Republic of Korea accepted the instant land in order to implement the said project, and the compensation for losses was 37,485,00 won (unit price of KRW 10,500), and on May 7, 1998.

C. On November 17, 1998, the plaintiff appealed against the adjudication of expropriation on the ground that the above amount of compensation is low, the defendant Jung-gu had the Pacific appraisal corporation and the new appraisal corporation evaluate the land of this case on the basis of the date of the adjudication of expropriation. The above two appraisal institutions arithmetic mean the appraisal values of the above two appraisal institutions, which dismissed the plaintiff's objection on November 17, 1998 (hereinafter referred to as the "adjudication of this case").

2. The parties' assertion

A. The plaintiff asserts that the ruling of the objection of this case was unlawful for the following reasons, and with respect to the defendant Jung Jung-gu, the plaintiff sought the revocation of the part corresponding to the difference between the reasonable compensation and the compensation recognized in the ruling of the objection of this case, and the payment of money equivalent to the difference to the difference with respect to the defendant Korea.

(1) The Defendant’s Republic of Korea uses the instant land as a housing site for residents outside the military units under its control from around 1990, and since houses for residents outside the barracks are not directly necessary facilities for military purposes defined in the Act on National Defense and Military Installations Projects, the purpose of the above expropriation does not fall under “national defense and military installations projects” under Article 2 of the above Act, the approval of the above implementation plan itself is null and void and thus the instant ruling is null and void.

(2) The instant land was used as a housing site from around 1990 to the Defendant Republic of Korea, and was the site at the time of the adjudication of expropriation, but the instant objection was based on the appraisal based on the “forest land at the time of changing its form and quality”.

(3) The comparative standard for calculating the expropriation price of the land should be the selection of the land similar to the land to be compared, location, traffic volume, use situation, topography, etc. In comparison with the land of this case, each appraisal, which forms the basis for the ruling of this case, has caused a significant inconvenience in traffic, topographical slope, and the current status of use in topographical map, which is not completely similar to forest land, and each appraisal was wrong in selecting the land as the comparative standard. In addition, each of the above appraisal, when revising the officially announced land price of March 27, 1998, which was at the time of the base date of the assessment for compensation assessment, was determined on March 27, 1998, based only on the land substitution rate, regardless of the overall land substitution rate of the land of this case from the year 196 to March 27, 1998.

(b)To this end, the Defendants asserts that the instant objection is lawful in accordance with the relevant laws and regulations, and, in particular, that the appraisal based on the appraisal based on the “forest as at the time of changing the form and quality of the instant land” in the instant objection ruling is lawful in accordance with Article 6(6) of the Enforcement Rule of the Public Special Law (hereinafter referred to as the “Enforcement Rule of the Public Law”).

3. Determination as to whether the instant objection was lawful

A. Judgment on the assertion that approval of execution plan itself is null and void

The National Defense and Military Installations Projects Act provides that, where a project implementer intends to implement a project prescribed by Presidential Decree among national defense and military installations projects, he/she shall prepare the implementation plan and obtain approval from the Minister of National Defense as prescribed by Presidential Decree (Article 4(1)); the Minister of National Defense shall publicly announce the approved implementation plan (Article 5(2)); the project implementer may expropriate or use the land, etc. necessary for the national defense and military installations projects within the notified zone of the implementation plan (Article 6(1)); except as otherwise provided in the above Act, the Land Expropriation Act shall apply to the above expropriation or use (Article 6(2)); and the approval of the implementation plan under this Act shall be deemed the project approval under Article 14 of the Land Expropriation Act (Article 6(3)).

Therefore, the approval of an implementation plan for national defense and military installations projects under the above Act has the nature of an administrative disposition that establishes a certain right to expropriate on condition that a project operator go through a certain procedure thereafter. The effect of the notification of approval is to determine the scope of the object to be expropriated, and the effect of the notification of approval results in a kind of public law right that can be set up against the present and future right holders. Thus, the plaintiff, a landowner, who is a land owner, shall file a lawsuit on the ground that the approval of an implementation plan is illegal and unjust at the stage of the authorization and public notification of an implementation plan, which is a prior disposition, and the cancellation of the adjudication on expropriation or objection after the lapse of the period of litigation, shall not be claimed on the ground that it is unlawful and unjust (see Supreme Court Decision 95Nu13241, Apr. 26, 1996).

However, the plaintiff argues that the approval of the above execution plan itself does not correspond to the "national defense and military installations project" under Article 2 of the above Act, and therefore, the above execution plan's approval itself is null and void. However, since the purpose of expropriation is a policy decision based on various circumstances, it cannot be viewed as a "national defense and military installations project", barring any special circumstance, and such reason alone cannot be viewed as an "legally null and void". Even if there is a defect in the approval of the execution plan for domestic affairs, it is nothing more than an illegal reason. Thus, the plaintiff's assertion that the above ground of appeal is without merit (the military personnel's assertion that there is a great need to move work units from time to time in preparation for rapid mobilization of an emergency, and there is a lot of cases where soldiers above the house move to the military installations from time to time to time according to the military personnel order, and the residential situation surrounding the military branch is poor, and therefore the plaintiff's second military installations and apartment houses are not directly used for military purposes beyond the above military installations' residential purpose and their family welfare facilities.

B. Determination as to the assertion that evaluation should be based on the "site," which is the present condition of the land of this case;

(1) Articles 46(2) and 57(2) of the Land Expropriation Act and Article 3-2, 4, and 8 of the Special Act on the Compensation for Public Loss (hereinafter referred to as the “Special Act on the Compensation for Public Loss”) and Article 2-10(2) of the Enforcement Decree of the Land Expropriation Act provide that “The assessment of the land to be acquired shall be conducted according to the actual conditions of use at the time of the price, regardless of the land category on the public cadastral book, and the temporary conditions of use shall not be considered.”

Meanwhile, as an exception to the principle of current status assessment, Article 6 (6) of the Enforcement Rule of the Public Special Act (amended by Ordinance of the Ministry of Construction and Transportation No. 3, Jan. 7, 1995) provides that "the site of an unauthorized building, etc. or the land illegally altered in form and quality shall be appraised at the time when an unauthorized building, etc. is constructed or the change in the form and quality of the land is made." (However, according to paragraph (4) of the Addenda of the above Enforcement Rule, the above provision provides that the compensation for illegal land alteration or undeveloped land, etc. incorporated into a public project implementation zone at the time of the enforcement of the above Enforcement Rule shall be governed by the previous provision, notwithstanding the above amendment provision.) The purport of the above provision is to prevent the land owner or a third party from unfairly distorted the current status of use through unlawful alteration of form and quality so that the land owner obtains unfair profits, thereby accomplishing the principle of "reasonable compensation" under Article 4 (2) of the Public Special Act, and if the price of the land at the time of expropriation is contrary to the principle of public project.

(2)However, in full view of the above evidence and the result of the appraisal commission to the Japanese appraisal corporation of the court below and the result of the fact inquiry about the above appraiser of the court below, the land of this case was used as "forest land" according to its land category. But around 1990, the military unit affiliated with the defendant Republic of Korea changed the form and quality of the site without due process such as permission for changing the form and quality in order to use it as a housing site for the non-permanent residents and their families, and used new housing after using it as a new site form and quality without due process such as permission for changing the form and quality. Accordingly, the appraisal agencies at the time of the ruling of this case verified that the present land was the above site at the time of incorporation into the project of this case and the ruling of expropriation, but the appraisal agencies at the time of the ruling of this case confirmed that the present land was the site as above, on the ground that it falls under the land category as at the time of incorporation into the project of this case and there is no counter-

(3) If so, this case's land should be assessed on the basis of "site, which is a real use at the time of expropriation ruling in accordance with general principles" (Article 6(7) of the Public Special Act provides that "where the land in this case is incorporated into the housing site development zone after January 7, 1995, the implementation date of Article 6(6) of the Enforcement Rule of the Public Special Act shall not apply to the land in this case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's case's new public project's case's case's case's case's case's price's case's case's case's case's case's case's case's case's case's new public project's case's case's case's case's case's case's case's case's case's case's case's case's case's new case's case's case's previous public project's case's case's case's case's case'

Therefore, the compensation for the land of this case should be based on the "site" under Article 46 (1) of the Land Expropriation Act, Article 2-10 (1) and (2) of the Enforcement Decree of the Special Taxation Act, which is a realistic situation of use at the time of the decision of expropriation pursuant to the provisions of Article 2-10 (1) and (2) of the Enforcement Decree of the Special Taxation Act. Thus, the objection ruling of this case based on the appraisal and assessment that calculated the compensation

(c) Calculation of just compensation.

In full view of the results of the commission of appraisal by the court below to the Japanese appraisal corporation and the results of fact-finding by the court of original judgment on the above appraiser, the legitimate compensation for the land of this case calculated in accordance with the relevant Acts and subordinate statutes shall be 59,678,757, which is calculated as a comparative standard for the land of this case based on the site of Gangseo-si D major 251 square meters (it shall be 59,678,757 (it shall be 10,500 won in the officially announced land price of the non-permanent standard site x 1.0160 x regional factors x 1.0560 x 1.0560 x 1.0560 x 1.4839 x

(1) In addition to the land of this case, the above appraisal corporation was selected as a comparative standard for the land of this case with the land of this case with the land category of 6,466 square meters in Gangseo-si, Gangnam-si, which is the comparative standard land of this case. However, the above land of this case cannot be deemed as having similar usefulness to the land of this case as forest land. Thus, the above land cannot be deemed as a comparative standard for the land of this case)

Therefore, it is clear that the reasonable amount of compensation for the plaintiff is more than 22,193,757 won (=59,678,757 –37,485,000 won) than the amount of compensation recognized in the decision of this case.

4. Conclusion

Therefore, among the parts of rejection of the plaintiff's objection in this case, the part of this case amounting to 21,634,200 won which is the difference with the above legitimate compensation among 22,193,757 won which is the difference with the above legitimate compensation. The defendant Republic of Korea cancelled the above amount of 21,634,200 won which the plaintiff seeks, and 1,892,100 won which is the cited amount of the court below, which is the above amount of 21,634,200 won which the plaintiff seeks, it is reasonable to dispute about the existence and scope of the above defendant's obligation from May 8, 1998, which is the date following the date of acceptance of this case to May 23, 201, 5% per annum of the Civil Act, 25% per annum from the next day of the judgment below to the date of complete payment, 19,742,100 won per 20% per annum of the above judgment below to the above amount of 20.

Judges Lee Hong-hoon (Presiding Justice)