(영문) 대전지방법원 2014.3.26.선고 2012구합1015 판결

1. The defendant shall pay to the plaintiff 65,340,00 won with 5% interest per annum from July 18, 2012 to March 26, 2014 and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall serve the plaintiff 648, 594, 560 won and a copy of the amended claims of this case.

The payment shall be made at the rate of 20% per annum from the date of full payment to the date of full payment.

Reasons

1. Basic facts

(a) Business name: 5th project for constructing permanent multipurpose dams (hereinafter “the instant project”): Defendant 3): Public notice given by the Ministry of Land, Transport and Maritime Affairs on June 29, 2009, No. 2009 - 410

B. The Central Land Expropriation Committee’s ruling on expropriation on October 28, 201 (hereinafter “instant adjudication on expropriation”)

1) Commencement date of expropriation: December 21, 201

2) Compensation subject to expropriation: Compensation for losses for losses and obstacles caused by the closure of the livestock industry operated by the Plaintiff: 151,328,320 won [the total amount of compensation for business compensation 130,720,720,000 won (the amount of sales losses + the amount of 10,800,000,000 won), and compensation for obstacles, etc. 20,608,320 won] as a result of appraisal of the operating income of the appraisal corporation (the amount of compensation for business compensation hereinafter referred to as the “appraisal of this case”).

(a) Minor Appraisal Corporation: 115, 040, 000 won or more: 120,800,000 won or more;

【Uncontentious facts, Gap’s evidence Nos. 1, 2, Eul’s evidence Nos. 1 and 2, and all pleadings

① From the Plaintiff’s business loss compensation amount due to the closure of the Plaintiff’s livestock industry, the business profit (hereinafter “business profit of this case”) should be “the method of evaluating the lost profit by using the formula of the average X sales unit price among the companies that are capable of shipping the company’s annual average production amount of X-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S.

3. Determination

(a) Relevant statutes;

The provisions of the attached Table shall be as specified in the statutes.

B. The plaintiff is a livestock farmer who has raised pigs while operating *** farm while operating 'the permanent residence'. In relation to the implementation of the project of this case, the plaintiff is liable to compensate for the closure of the livestock industry.

B) At the time of the Plaintiff’s confirmation in the instant decision on expropriation, the number of raising livestock at the time of the instant decision is about 200 ambs (170 ambs, Ireland 30 ambs), 360 ambs and 400 ambs.

(c) as a result of the court appraiser A’s operating income appraisal: 185, 260, 000 won for the court appraiser B: 352, 754, 267 won

【Principle of Evaluation of Compensation for Loss, in whole, as a result of each commission of appraisal to appraiser A and B by an appraiser of this court, as a result of each commission of appraisal by an appraiser A and B, without a dispute over the basis of recognition

Article 77(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11690, Mar. 23, 2013; hereinafter “Public Works Act”) provides that compensation for business losses incurred by the closure or suspension of business shall be made by taking into account business profits and expenses incurred in relocating facilities. With respect to compensation for such business losses, the Enforcement Rule of the Public Works Act provides for the method of evaluating losses by distinguishing compensation for suspension of business and compensation for the closure of business from compensation for suspension of business under Articles 46 and 47. According to Article 46, the method of evaluating losses incurred by the discontinuance of business. According to Article 46, operating losses in cases of the closure of business shall be calculated by adding the sales losses of fixed assets, raw materials, products, and goods for business use (in cases of personal business, excluding the year in which business operation is not performed normally due to special circumstances) to the average operating profits for the last three years of the business concerned.

At this time, the calculation of operating income, which serves as the basis for calculating the amount of loss of the discontinued business, is based on a reasonable method that can reflect the actual operating income (see Supreme Court Decision 2002Da3662, 3679, Oct. 28, 2004).

3) The calculation of the operating profit of the instant case is not unlawful unless there exist several appraisal values contrary to the same facts in the lawsuit concerning the increase or decrease of compensation, and there is no evidence to prove any error in one of them, even though the court has employed any one of the appraisal or recognized a fact based on only a single appraisal, it cannot be deemed unlawful (see Supreme Court Decision 97Nu11720, Jan. 28, 2000, etc.). First, it is examined from among the appraisal of the instant case and the court appraisal.

In calculating the ‘average operating income for the last three years' which is the basis for the operating income of the instant case, ① the average annual income for each of the two different amounts of the maternity and the self-paid money in the instant expropriation adjudication, while the court appraiser A and B calculated the daily operating income by reflecting the characteristics of each Plaintiff’s farm engaged in the livestock industry by obtaining and shipping the self-paid money. ② Article 46(3) of the Enforcement Rule of the Public Works Act provides that "The operating income shall be assessed based on the average operating income for the last three years of the pertinent business, but where the operating income has decreased due to the announcement or announcement of the plan for public service, it shall be assessed based on the average operating income for the last three years of the pertinent announcement or announcement." Thus, in the instant case where no special circumstance is recognized, such as the decrease in operating income due to the announcement or announcement of the instant project, it shall be calculated based on the date of expropriation adjudication for the last three years from September 17, 2010 to the end of 2017.

C) Next, we examine the results of the court appraiser A’s appraisal and the results of the court appraiser B’s appraisal.

Expert A determined that: (a) the sales ratio of the Plaintiff’s money was higher than the sales ratio of the sexual money on the grounds of the Plaintiff’s livestock shed size, sales records from May 2009 to November 2009, the old age of livestock pens buildings, and poor housing management conditions, etc.; and (b) accordingly, determined that: (a) the Plaintiff was mainly engaged in the shipment of the immediately shipped in the Plaintiff’s livestock instead of the one of the one of the one of the one of the one of the one of the one of the Plaintiff’s own money and the one of the two directly raising the money to the non-land; and (c) accordingly, (d) the proportion of the Plaintiff’s raising the money to the non-land in the Plaintiff’s farm was 79:21.

However, an appraiser A assessed the annual shipment volume by taking into account the data submitted by the Plaintiff and the management status of the livestock shed of this case. This is consistent with the appraisal of acceptance of this case: (a) the Plaintiff’s livestock shed facility was found to have been conducted as a substitute for the management of the livestock shed facilities, and so it was found that there was little scale of livestock pens compared to the number of the total livestock farms even if considering some embankments,” and (b) the relevant livestock shed was found to have been left for a long time after being awarded a contract for an auction and left for a long time, and was found to have been poor in management, without considering the status of the livestock shed management on the ground that the Plaintiff’s livestock shed had been already expropriated, and without considering the status of the livestock shed management, calculated the sales volume and sales ratio compared to the total number of the total number of livestock farms nationwide.

Considering this point, this Court shall adopt the appraisal results of appraiser A, which appears to reflect the plaintiff's management status, management status, and revenue status more appropriately.

D) Therefore, the amount of compensation that the Defendant additionally paid to the Plaintiff in relation to the instant operating income is KRW 119,920,000 calculated by subtracting the operating income amount of KRW 119,920,00 from the amount of operating income accrued from the appraiser A’s appraisal result, and KRW 65,340,000, and delay damages therefrom.

4) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 65,340,000 won as well as damages for delay calculated at each rate of 20% per annum under the Civil Act from July 18, 2012 to March 26, 2014, which is the date following the day when the copy of the written amendment of the purport of the claim is served on July 13, 2012, which is the day following the day when the defendant served on July 13, 2012, which is the day when the decision of this case was rendered to the plaintiff, and from the next day until the day when the full payment is made, 5% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

4. Conclusion

Therefore, the plaintiff's claim is reasonable within the above scope of recognition, and the remaining claims are dismissed as there is no ground. It is so decided as per Disposition.