Plaintiff 1 and 12 others (Law Firm Uniform, Attorney Gyeong-he et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Tae-ju, Counsel for defendant-appellant)

May 13, 2016

1. Of the instant lawsuit by Plaintiff 12, the part of the claim against the 531m2 in Sungsung-si ( Address 2 omitted) shall be dismissed.

2. The Defendant shall pay to the Plaintiffs 5% of the annual amount of money and 15% of the annual amount of money from March 25, 2014 to July 29, 2016, and the annual amount of money from the next day to the date of full payment.

3. The plaintiffs' remaining claims are dismissed.

4. Of the costs of lawsuit, 30% of the portion arising between the plaintiff 12 and the defendant is assessed against the plaintiff 12, the remainder is assessed against the defendant, and the remainder is assessed against the plaintiffs except the plaintiff 12 and the defendant.

The defendant shall pay to the plaintiffs 12 excluding the plaintiff 5,985,000 won and the plaintiff 12 excluding the plaintiff 5,000 won with the amount of compensation indicated in the compensation statement of each plaintiff 12 (hereinafter "compensation statement") from December 2, 2009, and the remaining plaintiffs excluding the plaintiff 5 shall pay 5% per annum from the day from the day after the corresponding date in the registration date in the compensation statement, until the day after the copy of the application for modification of the claim and the cause of claim in this case is served, and 15% per annum from the following day until the full payment date.

1. Details of ruling;

A. On March 28, 2008, the Minister of Land, Transport and Maritime Affairs publicly announced an implementation plan for Pyeongtaek-si-si Expressway Project (hereinafter “instant project”) in which the project implementer was set as Jeju Coastal Expressway Co., Ltd. and the Defendant (Land Compensation), and opened 153 lines of the motorway 153 km section from the Jeju-si, Jeju-do, Jeju-si, Jeju-si, Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, the Jeju-si, and the Jeju-si, the Ministry of Land, Transport and Maritime Affairs announced the detailed list of land to be incorporated into the instant project under Article 209-399 of the Ministry of Land, Transport and Maritime Affairs’s notification

B. The Plaintiffs owned the land indicated in the original location, parcel number, land category, and area column (hereinafter “instant land”) among the compensation details table in the Gesung City (location omitted), but pursuant to the public notice of the said land tax item, the part of the land included in the compensation details table and the description in the area column (hereinafter “instant incorporated land”) was included in the instant project.

C. During the period from November 4, 2008 to June 21, 2011, the Plaintiffs completed the procedures for consultation on compensation for the land to be incorporated in this case with the Defendant on the date indicated in the column for acquisition of consultation among the compensation list, and transferred the registration of ownership transfer to the Republic of Korea on the date indicated in the column for registration in the compensation list.

D. On March 25, 2013, Jeju Coastal Expressway Co., Ltd. completed a completion inspection after completing the instant project.

E. On March 14, 2014, the Plaintiffs sent to the Defendant a content-certified mail claiming compensation on the ground that the price reduction has occurred with respect to each of the lands indicated in the column for the parcel number and size of the remaining land among the compensation details table, which are the parts not incorporated as above, among the instant land, (hereinafter “the remaining land of this case”). Accordingly, on March 24, 2014, the Defendant sent to the Defendant a reply that the compensation was impossible on the ground that the price of the remaining land of this case did not decrease.

F. The Plaintiffs filed an application for the adjudication of compensation with the Central Land Expropriation Committee on May 8, 2014, when the Defendant refused the agreement on compensation for the remaining land of this case. However, the Central Land Expropriation Committee rendered a ruling dismissing the Plaintiffs’ claim for compensation for damages on the grounds that even if the part of the instant land included in the instant land was acquired through consultation on May 21, 2015, it is difficult to recognize that the value of the remaining land of this case was diminished.

[Ground of Recognition] Facts without dispute, Gap evidence 2-1, 2, 3, Gap evidence 3-1 through 22, Gap evidence 4-1 through 23, Gap evidence 5-1 through 26, Gap evidence 8, 9-1 through 4, Eul evidence 1-2, Eul evidence 3-1, Eul evidence 3-2, and the purport of whole pleadings

2. Determination on this safety defense

A. The defendant's assertion

1) Article 73(2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) provides that “compensation for losses caused by the reduction of the price of remaining land shall not be claimed after one year has elapsed from the completion date of construction of the relevant project.” This is the period of filing a lawsuit or the period of application for adjudication. The Plaintiffs filed an application for adjudication on May 8, 2014, which was one year after the completion date of construction of the instant project, from March 25, 2013, and filed the instant lawsuit seeking compensation for losses due to the reduction of the price of remaining land on July 9, 2015. Thus, the instant lawsuit filed by the Plaintiffs is unlawful because it did not go through a lawful adjudication of compensation for losses or even with the period of filing a lawsuit.

2) With respect to the Plaintiff 12’s 531m2, Seosung-si ( Address 2 omitted), Plaintiff 5 did not undergo a decision by the competent Land Tribunal on compensation for the 4,480m2, and ( Address 4 omitted) 744m2, in the instant lawsuit, on the ground that the part claiming compensation for damages due to the price decrease in the remaining land among the instant lawsuit is unlawful (the Defendant is also with the same purport as to the 2,298m2, and ( Address 6 omitted) 156m2, in the instant lawsuit, on the grounds that the part claiming compensation for damages due to the price decrease in the remaining land among the instant lawsuit is unlawful (the Defendant is with respect to the 3m2,298m2, and ( Address 6 omitted). However, Plaintiff 3 excluded the part claiming compensation for damages due to the price decrease in each of the instant land from the alteration of the purport of the claim and the cause of the claim on March 11, 2016.)

B. Determination

1) Whether the period of application for adjudication or the period of filing a lawsuit is expired

Article 73(1) of the Land Compensation Act provides that “if the price of the remaining land is reduced due to the acquisition or use of part of a group of land owned by the same owner, the project operator shall compensate for such loss.” Paragraph (2) provides that “Compensation for loss under the main sentence of paragraph (1) may not be claimed after one year has elapsed from the completion date of construction of the relevant project.” Article 73(4) of the Land Compensation Act provides that “Article 9(6) and (7) shall apply mutatis mutandis to compensation for loss under paragraph (1).” Article 9(1) of the Land Compensation Act provides that “A project operator may enter the land occupied by another person to prepare for public works and conduct a survey or investigation,” and Article 73(4) provides that “If the project operator becomes aware of any loss due to the entry into the land occupied by another person and the survey or investigation under paragraph (1) and the compensation for loss under paragraphs (5) through (4), the project operator may not request the competent Land Expropriation Committee to make a decision on loss under paragraph (6).”

In light of the language, content, and structure of the provisions of the Land Compensation Act, “claim” under Article 73(2) of the Land Compensation Act shall be construed as meaning a claim for compensation for losses against a project operator. It shall not be interpreted as meaning an application for adjudication against the competent Land Tribunal or a lawsuit seeking compensation for losses against a project operator. The reasons are as follows.

A) Article 9 of the Land Compensation Act provides for the following procedures: (a) the project operator’s obligation to compensate for losses (Article 9(4)); (b) the time limit for claiming compensation for losses (Article 73(5)); (c) the compensation agreement (Article 76(6)); and (d) the purpose of the Act is to determine whether a project operator who bears the obligation to compensate for losses first claims compensation to a project operator; and (d) the specific amount of compensation; and (e) the procedures for applying for adjudication to the competent Land Tribunal if agreement is not reached. Article 73(4) of the Land Compensation Act applies mutatis mutandis mutatis mutandis mutatis mutandis to the compensation for losses caused by the decline in the price of the remaining land by entering and investigating the land occupied by another person. In addition, Article 73(2) of the Land Compensation Act means that the compensation for losses cannot be filed one year after the completion date of construction of the relevant project; and (e) the competent authority or competent court is not obliged to interpret the compensation for losses from the project operator’s logic and language to the compensation for damages.

B) The Land Compensation Act uses the term “application” for adjudication to determine the amount of compensation for the land for which the right to expropriate or use has been granted according to the project approval (see, e.g., Article 28), and uses the term “request” for adjudication to expropriate the land for which the right to expropriate or use has not been granted in the project approval (see, e.g., Article 74). As such, the Land Compensation Act separates the term “request for adjudication” from the term “request for adjudication.” In light of the fact that Article 9(7) which applies mutatis mutandis under Article 73(4) of the Land Compensation Act provides that where an agreement on compensation for losses has not been reached, the adjudication may be applied for. In light of the fact that the interpretation that “request” under Article 73(2) of the Land Compensation Act refers to an application for adjudication against the competent Land Tribunal is beyond the possible meaning of the language and text

C) In addition, in order to receive compensation for losses due to a decrease in the price of remaining land, only after going through the adjudication procedure stipulated in Articles 34 and 50 of the Land Compensation Act and then dissatisfied with the adjudication, the remedy can be granted pursuant to Articles 83 through 85 of the Public Works Act (see, e.g., Supreme Court Decision 2012Du24092, Sept. 25, 2014). If the period of request stipulated in Article 73(2) of the Land Compensation Act is interpreted as the period of filing a lawsuit, it would be unfair that the competent Land Tribunal cannot file a lawsuit against the adjudication even if the period of filing a lawsuit is exceeded due to a delay in the adjudication by the competent Land Tribunal without any cause attributable to the landowner, etc.

According to the facts acknowledged earlier, on March 14, 2014, before the construction completion date of the instant project from March 25, 2013, which was one year from March 2013, 2014, the Plaintiffs sent a certificate of claim for compensation for losses due to a decrease in the price of remaining land to the Defendant, who is the project implementer, and the Defendant responded to the Plaintiffs’ rejection on March 24, 201, it is reasonable to deem that the Plaintiffs filed a claim for compensation with the Defendant on March 25, 2014, which sent the above reply to the Plaintiffs at the latest. Accordingly, the Defendant’s main defense on a different premise is without merit.

2) Whether the decision procedure had been completed or not

A) First, Plaintiff 12 was the person who did not undergo a judgment on compensation for damages due to a price decrease in 531 square meters in the response to the Sinsung City ( Address 2 omitted). Therefore, the part of the lawsuit in this case by Plaintiff 12 concerning the above land is unlawful as it promptly claims against the project operator without going through the adjudication procedure.

B) Next, comprehensively taking account of the overall purport of the arguments in the statements in Gap evidence Nos. 9 and Gap evidence Nos. 5-10 and 11, Plaintiff 5 filed an application for adjudication on compensation for losses due to a decrease in the price of each remaining land with the Central Land Expropriation Committee on May 8, 2014 ( Address 3 omitted) 4,480 square meters, ( Address 4 omitted) 744 square meters, and the Central Land Expropriation Committee may recognize the fact that it dismissed Plaintiff 5’s claim for compensation for losses on May 21, 2015. Therefore, it is reasonable to deem that Plaintiff 5 was subject to adjudication procedures even each of the above lands. In this case without any evidence to find that Plaintiff 5 had withdrawn an application for adjudication on compensation for losses on each of the above lands, it cannot be readily concluded that Plaintiff 5 did not go through the procedure for adjudication on compensation for losses on each of the above lands. Accordingly, Defendant’s defense on this part is rejected.

3. Judgment on the merits

A. The plaintiffs' assertion

Since some of the land of this case is incorporated into a public service project and acquired through consultation, the price of the remaining land of this case has decreased, the defendant shall pay compensation to the plaintiffs due to a decrease in the price of the remaining land, such as the written claim for compensation.

(b) Fact of recognition;

1) The instant land is located on the south-dong side of the national expressway, “○IC” of this case, the area surrounding the instant land is a farmland zone consisting of farmland, such as electric field and paddy field, and forest areas, and part of a small and medium-sized factories, which are located in the surrounding areas of the instant land. As access to the instant land and a main road is possible to the instant land and its neighboring areas, the road and traffic condition are common parts. The form of the instant land is generally denied, and is currently being used as a paddy, field, and natural forest.

2) On September 5, 201, the Minister of Land, Transport and Maritime Affairs designated a 20-meter zone from the boundary line of a road zone on both sides of the instant motorways as a clearance zone for the purpose of preventing damage to the road structure, preserving the aesthetic view, and preventing any danger to the express traffic of automobiles, and publicly announced such designation as a clearance zone by the Ministry of Land, Transport and Maritime Affairs’

3) The Nonparty, who was entrusted with appraisal by the court of this case (hereinafter “court appraiser”), was located in and near the instant remaining land and its neighboring area. The Nonparty selected the reference land similar to public law such as special-purpose areas, actual use status, and surrounding environmental conditions as comparative reference land, and calculated the price prior to incorporation into the instant remaining land as indicated in the compensation details table through the time adjustment, regional factors, individual factors, and comparison of other factors. In addition, in calculating the price after incorporation into the instant remaining land, the Nonparty, as indicated in the compensation details list, calculated the price prior to incorporation into the instant remaining land, such as the time adjustment, regional factors, and other factors as indicated in the compensation details list. In addition, even though the Nonparty, who was entrusted with appraisal by the court of this case (hereinafter “court appraiser”), determined that the instant remaining part of the instant remaining land could cause value decline factors in the future availability of the remaining land by designating the clearance zone, the clearance zone was relatively easy, by applying 0.90, and then, reflected the price after incorporation into the compensation details as indicated in the individual administrative factors.

4) At the request of the Central Land Tribunal, Onnuri Appraisal Corporation and the Korea Appraisal Board (hereinafter “Adjudication Appraisal Board”) selected the comparison standard method like the court appraiser, and then calculated the price before incorporation into the remaining land of this case through comparison of regional, individual, and other factors. However, without reflecting the future availability of the remaining land of this case according to the designation of the clearance zone, the price was calculated at the same time as the price before incorporation.

[Ground of recognition] Gap evidence 6-1 to 21, Gap evidence 7-1 to 21, Eul evidence 3-1, Eul evidence 3-1, the court's entrustment of appraisal to the non-party of this court (hereinafter "court appraisal"), and the purport of the whole argument

C. Determination on the legitimate amount of compensation

In a lawsuit on the increase or decrease of compensation, both the appraisal by each appraisal agency and the appraisal by each appraisal agency selected by the court do not have any illegality reason in the appraisal method, and in consideration of the remaining price assessment factors except the individual assessment factors, the mutual opinion is consistent, but there is a difference in the appraisal result due to a somewhat different relationship among the individual assessment factors, inasmuch as there is no evidence to prove that there is any error in the individual assessment factors, it is reasonable to determine which one of the appraisal is a fair compensation amount, unless it is contrary to the logical rule and the empirical rule (see Supreme Court Decision 2002Du4679, Jan. 28, 2005, etc.). As such, the court appraisal is judged to properly reflect the price formation factors compared to the appraisal by taking into account the circumstances that the clearance zone may be designated in part of the remaining land of this case, the compensation amount shall be calculated in accordance with the court appraisal.

Article 32(1) of the Enforcement Rule of the Land Compensation Act, which applies mutatis mutandis pursuant to Article 73(5) of the Land Compensation Act, provides that the loss of the remaining land in cases where the price of the remaining land is reduced due to the acquisition of a part of a group of land belonging to the same landowner shall be the amount calculated by subtracting the price of the remaining land after incorporation into the public works implementation zone (where the price of the relevant land is changed due to the incorporation of the relevant land into the public works implementation zone, referring to the price before the change) from the price of the remaining land before the incorporation into the public works implementation zone. Thus, the defendant is liable to compensate the plaintiffs for the loss after deducting the price after incorporation into the public works implementation zone.

D. Judgment on the defendant's assertion

1) The defendant's assertion

Even if a clearance zone was designated as to part of the remaining land of this case, it is not a loss incurred due to the incorporation of part of the land of this case into a public service project, but merely due to the designation of a clearance zone, and there is a separate compensation provision on losses arising from the designation of a clearance zone, apart from the fact that there is a separate compensation provision on losses arising from the designation of a clearance zone, it cannot be deemed that the remaining land is subject to compensation for losses due to

In addition, on July 29, 2015, the Article 2015-538 of the Ministry of Land, Infrastructure and Transport announced on July 29, 2015, reduced the clearance zone from 20m to 10m, and thus, the court’s appraisal is unreasonable.

2) Determination

The loss due to the decrease in the price of remaining land includes not only the change of the actual use at the time of land expropriation, but also the decline in the use value and exchange value due to future availability or ease of transactions (see Supreme Court Decision 97Nu10680 delivered on September 8, 198, etc.).

Article 49(1) of the former Road Act (wholly amended by Act No. 12248, Jan. 14, 2014; hereinafter the same) provides that “the road management agency may designate a clearance zone, as prescribed by Presidential Decree, within the extent not exceeding 20 meters from the boundary line to prevent damage to the structure of a road, to preserve the scenic view, or to prevent risks to traffic.” Paragraph (3) of the same Article provides that an act of changing the form and quality of land, or new construction, reconstruction, or extension of a building or other structure within a clearance zone shall not be permitted. In light of the aforementioned provisions and purport of the former Road Act, if part of the land is expropriated or acquired through consultation, it is highly likely to designate a clearance zone as to the remaining part of the land adjoining the road, and the possibility of designating a clearance zone would be higher if the road falls under a motorway, and thus, it cannot be deemed unlawful by reflecting the possibility of using the road or the possibility of using the road in its own way after the designation of the clearance zone, regardless of whether it actually fell.

(e)the initial date of damages for delay;

The plaintiffs seek damages for delay from the day after the date of acquisition of each agreement on the compensation in this case. However, in the case of the adjudication on expropriation of the land incorporated into the public works, if the compensation for delay is filed together with the adjudication on compensation for losses due to a decrease in the price of the remaining land, the damages for delay from the day after the date of commencement of expropriation on the compensation for the land due to a decrease in the price of the remaining land shall also be incurred. However, the compensation for losses due to a decrease in the price of the land incorporated into the public works shall not be deemed to have occurred as a matter of course on the day after the date of acquisition of agreement on the compensation for losses due to a decrease in the price of the remaining land due to a decrease in the price of the land. However, the Land Compensation Act only provides for the compensation for losses due to a decrease in the price

Therefore, the defendant is obligated to pay to the plaintiffs the amount corresponding to the compensation column in the compensation statement and each of the above amounts by 5% per annum under the Civil Act from March 25, 2014 following the day when the plaintiffs claimed compensation to the defendant, to July 29, 2016, and by 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the day following the day when the plaintiffs claimed compensation to the defendant.

4 Conclusion

Therefore, the part of the claim against 531m2 of the lawsuit of this case by Plaintiff 12 is unlawful, and thus, it is dismissed. The remaining claims by the plaintiffs are justified within the scope of the above recognition, and the remaining claims are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judges Kim Byung-soo (Presiding Judge) and Park Jong-chul

Inability to sign and seal due to a long-term beneficiary leave;