2013Guhap1049 Compensation for land incorporated into rivers

○ Transmitt. :

Gangwon-do

Law Firm Multi-Hunting, Counsel for the defendant-appellant

Attorney Jin-Gyeong, Counsel for the plaintiff-appellant

July 10, 2015

August 25, 2015

1. The defendant shall pay to the plaintiff 4,492,00 won with 20% interest per annum from March 21, 2015 to the day of complete payment.

2. The costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Facts of recognition;

가. 구 토지조사령에 의하여 1915. 경 작성된 춘천군 사북면 신포리 토지조사부에는 경성부 광화문통에 거주하는 " 송OO ( 宋泰鉉 ) 이 위 신포리 61 대 73평, 같은 리 79 전7, 026평의 소유자로 등재되어 있다 .

B. After that, the name of the administrative district of the Sincheon-gun, Chuncheon-si was changed to that of the Sincheon-si, Gangwon-do.

The land category was changed and divided into 132 square meters in Cheongcheon-si, Cheongcheon-si, Mapo-ri 61, 73 square meters (hereinafter referred to as "Mapo-ri 61 square-ri land") in Chuncheon-si, Mapo-ri 61, Mapo-ri 61, 132 square-ri, 61-2, 109 square-ri, and 79 square-ri, 109 square-ri, Mapo-ri, Mapo-ri, 79, 026 (hereinafter referred to as "Mapo-ri 79-ri Mapo-ri").

Since December 19, 1983, the 79-1 maintenance2, 982 square meters was merged into 76 - 1 square meters in the same Ri 76-1 square meters.

Land subject to compensation for loss among the above land is as listed in the attached Table (hereinafter referred to as "each land of this case").

C. The cadastral record on each land of this case was destroyed by the Korean War, etc., and was restored to the original state. From 1961 to 1962, each registration of preservation of ownership was made in the name of the North-do, Chuncheon-gun, etc. with respect to each land of this case.

D. Pursuant to Article 8 of the former River Act (amended by Act No. 892 of Dec. 30, 1961; hereinafter referred to as the "River Act") on December 11, 1962, each of the instant land was incorporated into a zone for pre-determined river land of "180" and "construction works (personal construction works)". Gangwon-do decided and announced a Do- No. 1463 of May 28, 1963 as the mutatis mutandis river of 1463, which was located within the boundary of 500,000,000 - 7,0000,000,000 were included in the said village, and the land category of each of the instant land was altered to 7,000,000,000,000,000,000,000,000,000,000,000.

E. Each of the instant lands is currently incorporated into the relevant river area (waterside section) in accordance with the Han River basin basic plan as determined and publicly notified by Notice No. 2003-21 of February 10, 2003 by the original regional construction management office of the Republic of Korea in accordance with the Han River basin basic plan.

바. 본관이 진천인 송○○ ( 宋泰鉉, 1852년생 ) 은 1918. 4. 8. 경 사망하여 장남 송○억이 호주 및 재산상속을 하였고, 송○억은 1927. 8. 11. 사망하여 장남 송○식이 호주 및 재산상속을 하였으며, 송○식은 1996. 12. 1. 사망하여 자녀 망 송○주, 송○숙, 송○희, 원고 , 송○길, 송규가 공동으로 재산상속을 하였다 .

G. On July 19, 2013, the deceased on the part of the deceased on July 19, 2013, the deceased on the part of the deceased on the part of the deceased, and there was no heir of the deceased on the part of the deceased on the part of the deceased on the part of the co-inheritors, and on August 1, 2013, the agreement on the division of inherited property between the deceased on the part of the co-inheritors

[Ground of recognition] Gap evidence 1 through 5, 9 through 11, 13 through 17, and Eul evidence 1 through 4 (including each number), the purport of the whole pleadings

2. Determination:

A. 1) The Plaintiff acquired the right to claim compensation due to the incorporation of each land of this case into a river, and according to the facts acknowledged prior to the Plaintiff’s acquisition of the right to claim compensation due to Gap’s incorporation into a river, and according to Gap’s evidence Nos. 6 through 8, and Gap’s evidence No. 12 (including the number), the title of the circumstance of each land of this case, ○○○ (hereinafter “○○”).

In accordance with subparagraph 7 of the Gyeonggi-do Public Notice on April 1, 1914, the Hydrological Dong of the Seongbuk-gu, the domicile of which is the domicile at the time of the situation of the Dong-do.

다른 동과 통합되어 ' 경성부 광화문통 ' 으로 되었다가, 1943. 6. 10. 조선총독부령 제163호로 ' 종로구 광화문통 ' 으로 된 사실, 광화문통 19 대 95평의 구 토지대장에 송○○ ( 宋 泰鉉 ) 이 1912. 9. 12. 위 토지를 사정받아 이를 이 사건 토지에 대한 사정 당시 소유하던 것으로 기재되어 있는 사실, 1915년 작성된 춘천군 사북면 신포리의 토지조사부에는 ' 경성부 광화문통 ' 이 주소인 송○○ ( 宋泰鉉 ) 이 위 신포리 토지들을 사정받은 것으로 기재되어 있는 사실, 원고의 부 송○식의 제적부에 위 송○식이 1918. 3. 23. ' 경성부 광화문통 19 ' 에서 출생한 것으로 기재되어 있는 사실을 인정할 수 있다 .

According to the above facts of recognition, it is reasonable to view that the same person is the same in light of the fact that ○○ and the plaintiff’s prior name are the same as the Chinese, and that there is no evidence to see that the defendant had the prior name in the above floodgate as the situation name at the time, and that there is no evidence to ○○ and the Dong name in the above floodgate at the time.

Therefore, the registration of preservation of ownership of each land of this case shall be null and void, under the circumstances of the Plaintiff’s prior owner of the land, and the registration of preservation of ownership of the land in the name of the deceased, North-Myeon, Chuncheon, etc., which had been completed with respect to each of the above land, was designated as a river around 1963. However, since each of the above land was designated as a river around 1963, each of the above land was owned by the State under the River Act in 1961, and the deceased Song ○ acquired the right to claim compensation under the same Act around that time. After that time, the above right to claim compensation was acquired by succession in order of the deceased ○○ Supup and Song ○, and the Plaintiff succeeded to the above right to claim compensation following the agreement on the division of inherited property

2) Determination as to whether the Plaintiff’s claim for compensation under the Act on Special Measures for the Compensation, etc. for Land Incorporated into Rivers is recognized

The defendant asserts that since each of the instant lands does not fall under Article 2 (1) 2 (a) of the former River Act (wholly amended by Act No. 2292, Jan. 19, 1971; hereinafter referred to as the "River Act") and does not fall under Article 2 (1) 2 (a) of the former River Act (wholly amended by Act No. 2292, Jan. 19, 1971; hereinafter referred to as the "River Corporation Act"), the claim for compensation under the Act on Special Measures for Compensation for Land Incorporated into Rivers (hereinafter referred to as the "Act on Compensation

The latter part of Article 15 of the Constitution of the Republic of Korea (amended by Act No. 5 of Nov. 29, 1960) provides that the expropriation, use or restriction of property rights of the people due to public necessity shall be made by paying a reasonable compensation as prescribed by Act. Article 23(3) of the Constitution of the Republic of Korea provides that the expropriation, use or restriction of property rights due to public necessity and compensation therefor shall be made by Act.

Article 2 of the River Acquisition Compensation Act provides that where a piece of land becomes a river area under Article 2 (1) 2 (a) of the same Act before the River Act enters into force in December 31, 201, the extinctive prescription of a claim for compensation due to the inclusion of land into a river shall be the Special Metropolitan City Mayor, Metropolitan City Mayor or Do Governor to compensate for the loss when the extinctive prescription of a claim for compensation due to the inclusion into a river is

The River Act in 1971 defines "river" as a river closely related to the public interest of Article 2 (1) 1 as its name and section as designated by Presidential Decree, and the river area is divided into the following categories: Article 2 (1) 2.

(1) A: The area of land and topography on which the flowing water of a river is continuously flowing, and the area of land on which the flowing water of a river affects the flowing water of a river due to considerable flow at least once a year.

(2) River appurtenances: The area of land which is the site of river appurtenances (facilities or structures installed under the River Act, such as dams, etc. necessary for river management).

(3) In the case of a place where a bank exists, Article 2 of the River Act of 1961 provides that the name and the section of a river shall be designated under the respective order as a river closely related to the public interest. Article 8 of the River Act shall apply mutatis mutandis to the suspension of rivers. Article 9 of the same Act provides that the River Act shall apply mutatis mutandis to a river (a river other than a river under ordinary reservoir, or a water surface that flows into or flows from a river) to a river to which the aforesaid provision shall apply mutatis mutandis. Article 62 of the same Act provides that in the case of a person who suffers a loss due to a disposition or restriction such as a decision of a river area, etc. by a disposition or construction made by the Administrator of the National Land Construction Agency shall compensate the relevant local government for such loss.

The purpose of legislation of the Act on the Compensation for Land Incorporated into Rivers has been to compensate through the revision of the River Act and the enactment of the Special Act on the Land, etc. in a state-owned river area in accordance with the principle of nationalization of a river, but it is to guarantee the right to the compensation provided by the Constitution to the owner of land incorporated into a river who has not received compensation

Article 2 subparagraph 1 of the River Acquisition Compensation Act recognizes a claim for compensation against a Mayor/Do Governor when the right to claim compensation expires due to the expiration of the extinctive prescription period, on the premise that even if a private land becomes a river area under the River Act in 1971, "land in which the flowing water of a river is continuously flowing" before the enforcement of the River Act in 1971, the right to claim compensation is recognized. In light of the legislative intent of the River Acquisition Compensation Act in 1971, it is interpreted that, in light of the fact that the private land becomes a river or a quasi-river for any reason before the enforcement date of the Act in 1971, even if the private land becomes a river area under the River Act in 1961, the owner who did not receive compensation under the River Act in 1961 has extended the extinctive prescription period of the right to claim compensation already acquired by the River Act in 1

Meanwhile, since the River Act or the River Act of 1971 does not have any limitation on the cause of loss of private land prior to the enforcement of the River Act in 1971, "land where the flowing water of a river is continuously flowing" is stipulated as a river area. Thus, if certain land has been lost for any reason prior to the enforcement of the River Act in 1971, it is reasonable to view that it constitutes a subject of subparagraph 1 of Article 2 of the Act on the Compensation for Land Incorporated into a River (i.e.,, Article 2 (1) 2 (a) of the River Act of 1971 as the defendant asserted under the law, and there is no ground to exclude "land lost due to dam construction" from the river area under Article 2 (1) 2 (a) of the River Act of 1971. If it is interpreted that the land lost due to dam construction is excluded from the river area under the River Act of 1971 without reasonable grounds, it is inconsistent with the purpose of legislation of the Act on the Compensation for Land incorporated into a River as well as a river.

Each of the instant lands was incorporated into a notice area of predetermined river land on December 11, 1962, and was determined and publicly announced as a river area to which the provision applies mutatis mutandis on May 28, 1963, and was lost due to the completion of Chuncheon Dam on May 28, 1965. In other words, each of the instant lands is based on the River Act in 1961, when it is based on the River Act in 1963.

It is reasonable to view that the land was designated as a "river to which Article 2 (1) 2 (a) of the River Act was applied mutatis mutandis, and that the flowing water of a river continued to flow at the time of the enforcement of the River Act in 1971 due to being lost in 1965, and it falls under the river area under Article 2 (1) 2 (a) of the River Act in 1971. Therefore, each of the instant land constitutes "where the land becomes a river area as it falls under Article 2 (1) 2 (a) of the River Act before the enforcement date of the River Act in 1971."

3) Sub-decisions

Each of the instant lands constitutes Article 2 subparag. 1 of the Act on the Compensation for Land Incorporated into River, and, at the time of incorporation of each of the instant lands into a river area, the deceased ○○ was not paid compensation under the River Act in 1961 (the Defendant received compensation from the State or a local government).

The plaintiff succeeded to the claim for compensation by the deceased Twit○○, and the above claim for compensation expired on December 31, 2013, since this court failed to submit the data to recognize the point, this court is obliged to compensate the plaintiff for losses arising from the incorporation of each of the above land into a river pursuant to Article 2 subparagraph 1 of the River Acquisition Compensation Act.

B. Scope of compensation for losses

Article 6 (1) of the River Acquisition Compensation Act provides that "The appraisal of compensation shall be based on the price on the date when the procedure for claiming compensation is notified or publicly announced, but the land category and land use status at the time of incorporation, restrictions under the public law on the relevant land, current status of land use, and arm's length price of neighboring land similar thereto, etc." shall be considered. In such cases, "land category and land use status at the time of incorporation" refers to the land category and land use status as at the time of nationalization

Since each of the instant lands was designated as a river area in 1963 and between 1965 and 1969, as a reservoir, and was actually incorporated into the river, the amount of compensation should be calculated on the premise of the current status of use at the time when each of the instant lands was incorporated into the river area and was used as "site"; the combined land was 61-2 of the same Ri as "site"; and the land was used as "79-4,79-5 of the same Ri" as "the land was used in the river area as at the time of nationalization."

According to the court's entrustment of appraisal of the appraiser's fixed interests, since the appraised value calculated on September 22, 2014, which was the actual appraisal date, based on the current status of use at the time of incorporation of each land of this case into the river area of this case, is 4,492,00 won, it shall be determined as the amount of compensation for losses.

C. Sub-committee

The defendant is obligated to pay the plaintiff compensation 4,492,00 won and damages for delay calculated by 20% per annum from March 21, 2015 to the day of full payment after serving the plaintiff a copy of the purport of the claim and the application for modification of the cause of the claim sought by the plaintiff.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges Masung-young

Judges Domincs

Judge Lee Jin-han