[1] Whether the land owner's warranty liability for the object of delivery such as land under Article 63 of the Land Expropriation Act is included (negative)

[2] The meaning of the goods to be transferred to the business owner under Article 63 of the Land Expropriation Act

[3] The case affirming the judgment of the court below which held that the land owner cannot be deemed to have the duty to transfer wastes on the ground that the above wastes are not independent goods since they are mixed to the extent that they cannot be physically separated from the soil and sand of the land, and they are not the goods to be transferred after payment of the transfer fee under Article 49 (1) of the Land Expropriation Act

[4] In a case where a hidden defect in the land subject to expropriation was discovered after the adjudication of expropriation but a project operator fails to go through the appeal procedure and thus the adjudication can no longer be contested, whether a project operator can seek the return of unjust enrichment against the landowner by civil procedure (negative)

[1] As a result of a decision on expropriation under the Land Expropriation Act, land ownership by a public project operator is not succeeded to by a legal act with a landowner and a landowner, but is originally acquired pursuant to the provisions of law. Therefore, the duty to deliver land to a landowner pursuant to the provisions of Article 63 of the Land Expropriation Act does not include warranty liability even if there is any hidden defect in the object of expropriation, and the landowner is only obligated to deliver the land to the public project operator until the time of expropriation.

[2] Article 63 of the Land Expropriation Act provides that a person who has a right to the goods on the land subject to expropriation bears the obligation to transfer them to the public project operator, the goods to be transferred after compensating for the transfer fee under Article 49 (1) of the Land Expropriation Act.

[3] The case affirming the judgment of the court below which held that the land owner cannot be deemed to have the duty to transfer wastes on the ground that the above wastes are not independent goods since they are mixed to the extent that they cannot be physically separated from the soil and sand of the land, and they are not subject to transfer by paying the transfer fee under Article 49 (1) of the Land Expropriation Act

[4] If hidden defects are discovered in the land subject to expropriation after the adjudication of expropriation was made, it is reasonable to view that public project operators can institute an administrative litigation on the ground of reduction of compensation for losses through an objection to the adjudication on the ground of such defects, from the perspective of fairness, if the appeal period has not yet expired. However, if the adjudication is no longer effective or cancelled, the project operator cannot seek a return of unjust enrichment against the landowner by civil procedure on the ground that the said defect was not reflected in the calculation of compensation for losses as set forth in the adjudication, unless the adjudication is void or cancelled automatically.

[1] Articles 43(1) and 63 of the Land Expropriation Act, Articles 462 and 580 of the Civil Act / [2] Articles 49(1) and 63 of the Land Expropriation Act / [3] Articles 43(1) and 63 of the Land Expropriation Act, Articles 462 and 580 of the Civil Act / [4] Articles 73, 75, and 75-2 of the Land Expropriation Act, Article 741 of the Civil Act

Korea Water Resources Corporation (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Defendant (Law Firm Yang & Yang LLC, Attorney Lee Han-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 98Na22996 delivered on October 28, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

As the effect of adjudication on expropriation under the Land Expropriation Act, land ownership by public project operators shall not be acquired by succession to land owners and landowners by legal acts, but shall be acquired at the original time pursuant to the provisions of the Act. As such, the obligation of the land owners to transfer land under Article 63 of the Land Expropriation Act, even if there is any hidden defect in the object of expropriation, does not include any warranty liability, and the land owners are only obligated to deliver the land to the public project operators until the expropriation date as they remain. Meanwhile, the obligation of the land owners to transfer the goods on the land to the public project operators under Article 63 of the Land Expropriation Act refers to the goods to be transferred after compensation for the transfer fee under Article 49(1)

According to the records, the non-party 1 conspired with the non-party 2 in sequence from June 1992 to November 1993 in collusion with the non-party 2, and it is recognized that the non-party 1 accepted the land of this case on June 18, 1996 after the expropriation ruling by the Central Land Expropriation Committee, and received the land of this case from the defendant as buried with the above waste. According to the above facts, the waste of this case is already mixed with the soil of this case to the extent that it can not be physically separated from the soil of this case and the waste synthetic resin, etc., which is a specific waste, and it can not be deemed that it constitutes an independent object, and it cannot be deemed that it is difficult to transfer the land of this case, and it is difficult to deem that it is a transfer fee of Article 49 (1) of the Land Expropriation Act.

Therefore, in light of the legal principles as seen earlier, the Defendant cannot be deemed to have the duty to transfer the instant wastes, and the Defendant shall be deemed to have fulfilled the duty to transfer the instant land.

In the above purport, the court below is just in holding that the defendant was not obligated to collect wastes buried in the land of this case, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

If hidden defects are found in the land subject to expropriation after the adjudication of expropriation was made, it is reasonable to view that public project operators may file an administrative litigation on the ground of reduction of compensation for losses through an objection to the adjudication on the ground of such defects in the fair position, but if the adjudication becomes no longer possible to bring an administrative litigation on the ground of the adjudication as a result of failing to take such objection procedures, public project operators may not seek a return of unjust enrichment against landowners due to civil litigation procedures on the ground that the adjudication is not necessarily void or cancelled unless the adjudication is void or cancelled.

According to the records, as seen above, Nonparty 1 buried wastes in the land of this case; the Central Land Expropriation Committee recognized on May 7, 1996 that the land of this case was disposed of with compensation 1,572,064,920 won and the timing of expropriation on June 18, 1996; and the Plaintiff, a corporate entity, confirmed that the above wastes were buried in the land of this case during the period from May 6, 1996 to May 10, 1996; however, the Plaintiff, without any objection procedure within the objection period with regard to the adjudication on the compensation for losses, accepted the land of this case on June 15, 1996 and received the land of this case from the Defendant in the state of reclamation; the Plaintiff’s claim for restitution of unjust enrichment of this case can no longer be asserted in light of the legal principles as seen earlier, and thus, cannot be accepted.

Although the judgment of the court below is somewhat insufficient in its reasoning, it is just that the court below rejected the plaintiff's claim of this case, and there is no error in the misapprehension of legal principles as to the theory of lawsuit.

3. Therefore, the appeal is dismissed and all 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 Jae-sik (Presiding Justice)