A. Whether the items of Article 4(5) of the Act on the Compensation for Public Loss and Compensation of Loss are exemplary

B. Whether Article 29 of the above Enforcement Rule is applied to the adjudication of expropriation even though the Enforcement Rule of the same Act was made before October 28, 1991, but the previous provisions did not receive the actual farming compensation due to the dispute over the compensation

A. In light of the purport of Article 51 of the Land Expropriation Act, Article 4(5) of the Public Land Expropriation Act and Article 4(5) of the Act on Special Cases Concerning the Compensation for Loss and Loss of Works, the items delegated so that the methods and standards for calculating the amount of compensation can be set by the Ordinance of the Ministry of Construction and Transportation, not limited, but merely an example, and so far as they do not violate superior laws and regulations with regard to the losses not listed.

B. In light of the provisions of Articles 2 and 3 of the Addenda to the Enforcement Rule of the Public Compensation for Losses and Losses of Public Use, which was enforced on October 28, 1991, if the adjudication of expropriation was made before the above Enforcement Rule, but the dispute over the compensation was pending and did not receive the actual farming compensation under the previous provision, the provisions of Article 29 of the amended Enforcement Rule shall apply.

(a)Article 57-2 of the Land Expropriation Act, Article 4(5)(b) of the Public Land Expropriation Act, Article 29 of the Enforcement Rule of the same Act, Articles 1, 2 and 3 of the same Act;

Plaintiff’s Attorney Seo-sik, Counsel for the plaintiff-appellant

Central Land Tribunal and one other Defendants (Attorney Go Young-deok, Counsel for the defendant-appellant)

Seoul High Court Decision 91Gu21222 delivered on July 9, 1993

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

We examine the grounds of appeal.

1. On the first and second grounds for appeal

Article 23(3) of the Constitution which provides the principle of fair compensation for infringement of property rights due to public necessity; Article 51 of the Land Expropriation Act which provides that compensation shall be made to landowners or persons concerned such as business losses, etc. due to expropriation or use of land; Article 4(5) of the Act on Special Cases concerning the Acquisition of Land and Compensation for Losses for Public Use (amended by Act No. 4484, Dec. 31, 191). In light of the purport of Article 4(5) of the Addenda of the amended Act, in this case where compensation has not been completed at the time of the enforcement of the amended Act, in principle, the amended Act shall apply pursuant to Article 2 of the Addenda of the amended Act; hereinafter the same shall apply), listed in Article 4(5) of the aforementioned Act which is applicable mutatis mutandis by Article 57-2 of the Land Expropriation Act, so that the methods and standards for calculating the compensation amount may be determined by the Ordinance of the Ministry of Construction and Transportation, as it is not limited, but it is merely listed in an example so as to determine the compensation method and standards.

Therefore, even though there is only interest only in farming expenses under Article 4 (5) of the above Act and there is no explicit provision on farming compensation, the relevant provision of the Enforcement Rule of the Public Special Act, which provides the method and criteria for calculating the amount of compensation with respect to farming damage suffered by a farmer who is unable to continue farming due to land expropriation, shall be deemed valid, and it shall not be deemed invalid without delegation of mother law, and the farming compensation in this case shall not be based on the law. The argument is without merit.

2. On the third and fourth grounds for appeal

The amended Rules of the Ministry of Construction and Transportation of October 28, 1991 shall enter into force on the date of promulgation of these Rules (Article 1), while the transitional regulations stipulate that if the compensation calculated by these Rules has not been completed at the time of enforcement of these Rules, and the compensation calculated by these Rules is less than the compensation calculated by the previous provisions (Article 2), the previous provisions shall apply (Article 3), and where the compensation has been paid by the previous provisions at the time of enforcement of these Rules, the provisions of Article 29 shall not apply (Article 3). Thus, even if the above decision of expropriation was made before the above Enforcement Rule of the Public Special Act was amended, if the compensation was not paid by the previous provisions due to the case under dispute over the compensation, the provisions of Article 29 of the amended Enforcement Rule of the Public Special Act shall apply.

In the same purport, the court below is just in holding that the plaintiff should pay farming compensation under Article 29 of the above amended Enforcement Rule, and there is no error in the misapprehension of legal principles such as the theory of lawsuit.

The argument that there was no agreement between the Plaintiff and the farmland owner about the payment of farming compensation by the Plaintiff cannot be a legitimate ground for appeal due to the matters not asserted in the original judgment. The argument is without merit.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-ho (Presiding Justice)