Whether a person who has suffered loss due to the removal of obstacles, etc. by a common telecommunications business operator in the installation and preservation of telecommunications facilities may claim compensation for loss through administrative litigation (affirmative), and in such case, the procedure of the previous trial that should undergo such

Under Articles 42(1), 45, and 47 of the Telecommunications Business Act, where a public project operator or a public project operator has a duty to compensate for losses incurred prior to the execution of a project by acquiring a right to the object of expropriation or use under the related Acts and subordinate statutes, he/she may file a civil lawsuit as compensation for losses caused by tort in cases where a public project is implemented without the consent of the owner or related person and substantial and realistic infringement on the said object has occurred. According to the provisions of Articles 42(1), 45, and 47 of the Telecommunications Business Act, in cases where a compensation for losses is claimed due to the removal of obstacles, etc. caused by a public project operator in installing and preserving telecommunications facilities, the provisions of Article 57(2) of the Land Expropriation Act and the procedure for appeal shall apply mutatis mutandis in light of the timing and contents of the compensation. In this case, the person who suffers losses may file an application for adjudication directly with the competent Land Expropriation Committee as prescribed by the relevant provisions of the Land Expropriation Act, and then file an administrative litigation pursuant to the provisions of Article 57(2) through (3) or7).

Article 750 of the Civil Act; Articles 42(1), 45, and 47 of the Telecommunications Business Act; Articles 25-3(1) and (2), 57(2), 73, 74, and 75 of the Land Expropriation Act

Supreme Court Decision 88Ma850 Decided November 3, 198 (Gong1988, 1518) Supreme Court Decision 96Da3258 Decided March 28, 1997 (Gong1997Sang, 1199), Supreme Court Decision 97Da13016 Decided November 14, 197 (Gong1997Ha, 3813), Supreme Court Decision 97Da32529 Decided November 14, 1997 (Gong1997Ha, 3835) Supreme Court Decision 95Da29161 Decided January 20, 198 (Gong198Sang, 551), Supreme Court Decision 105Da150394 Decided April 14, 1998 (Gong1998Sang, 195Da1503909 Decided May 15, 1939)

[Defendant-Appellee] Defendant 1 and 3 others

Korea Telecommunication Corporation

Seoul High Court Decision 96Gu16058 delivered on January 28, 1997

The judgment of the court below is reversed. All costs of the lawsuit are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the plaintiff established under the Korea Telecommunication Corporation Act, on September 23, 1993, purchased 17,752 square meters of forest land (location omitted) from Nonparty 2, the owner of the land, through consultation under the Act on Special Cases Concerning the Compensation for Loss of Public Works (hereinafter “Special Cases Concerning the Compensation for Loss of Land”), and completed the registration of transfer of ownership on November 29 of the same year. On March 29, 1994, the plaintiff completed the construction project on January 1, 1996 with permission for damage to forests and building permission granted from the head of Taean-Gun on the ground that it was unlawful for the plaintiff to file a claim for damages under the former Special Cases Concerning the Compensation for Loss of Land in light of the purport that, on February 11, 1974, the plaintiff obtained permission for partial mining facilities of the above land (hereinafter “the land in this case”) to be used as a construction project site for the construction project site for the Han-nam Cable Cable Cable Cable Construction Act.

2. However, according to the records and the reasoning of the judgment below, the plaintiff filed the lawsuit in this case by asserting that the defendant's act of restricting the plaintiff's extraction of the land in this case is based on Article 42 of the Telecommunications Business Act which provides for the right to demand removal of obstacles, etc. and its loss falls within the scope of compensation for losses as stipulated in Article 45 of the same Act, and even if not, it falls within the scope of compensation for losses as stipulated in the Land Expropriation Act, the defendant has the obligation to compensate for the loss suffered by the plaintiff as stipulated in each of the above laws, and that such compensation for losses can be claimed against the defendant

Therefore, the court below erred by misapprehending the legal principles as to the claim for compensation for damages under public law, even though the lawsuit in this case can only be brought in a civil lawsuit, if it does not meet the requirements after examining whether the lawsuit in this case was lawfully brought in accordance with the above laws, and if it is deemed that it satisfies the requirements, it shall be dismissed, and if so, it shall be further examined and determined on the merits.

However, in a case where a public project operator or a public project operator has a duty to compensate for losses arising from the acquisition of a right to the objects to be expropriated or used under the relevant Acts and subordinate statutes before the implementation of the project without implementing such compensation procedure and without obtaining consent from the owner or related person, and substantial and realistic infringement on the objects of the public project may file a civil lawsuit as compensation for losses arising from tort (see, e.g., Supreme Court Decisions 8Ma850, Nov. 3, 198; 96Da3258, Mar. 28, 1997; 96Da3258, Mar. 28, 1997); and Articles 42(1), 45 and 47 of the Telecommunications Business Act and Article 97(1)9 of the Land Expropriation Act and Article 57(2)19 of the Land Expropriation Act shall apply mutatis mutandis. In such a case, a person who has suffered losses shall file an appeal for adjudication pursuant to the relevant provisions of Article 57(1)7)1 of the Land Expropriation Act and procedures for adjudication pursuant to the aforementioned provisions.

However, it is obvious that the Plaintiff did not go through the adjudication under the Telecommunications Business Act and the Land Expropriation Act until the date of closing the fact-finding hearing of this case and the procedure for objection thereto. Thus, even if the lawsuit of this case was filed as a party suit under the above Acts as alleged by the Plaintiff, it cannot be exempted from rejection due to its illegality, since it does not comply with the method and procedure for objection under each of the above Acts.

3. Therefore, the judgment of the court below that deemed the lawsuit of this case to be unlawful in violation of the procedure for filing a lawsuit, on the premise that the lawsuit of this case constitutes a civil case, is reversed, and this court is sufficient to render its judgment. Accordingly, the lawsuit of this case is dismissed in accordance with the reasons mentioned above, and the total costs of the lawsuit are to be

Justices Lee Jae-hee (Presiding Justice)