[1] Whether the recipient's business operator's claim for compensation for losses at the pre-determination stage after the public notice of the project approval under Articles 14 and 16 of the Land Expropriation Act is disqualified (affirmative)

[2] The meaning of "a case where it is deemed reasonable for an obligor to resist the existence or scope of an obligation" under Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

[3] In a case where the defendant's appeal was accepted and the judgment of the court below prior to the remand was reversed, but the judgment of the court below prior to the remand was rendered based on the plaintiff's argument newly raised after the remanding, the extent of the period during which the defendant is deemed reasonable to resist as to the existence or scope of the obligation (=from the date of the

[1] The claim for compensation for losses incurred by a prisoner due to the expropriation of land occurs only due to the adjudication by the competent Land Tribunal, but the public notice of the approval of the project under Articles 14 and 16 of the Land Expropriation Act is given under the condition that the land to be expropriated should go through certain procedures, such as consultation with the inmate. Unless there are special circumstances, such as the discontinuation of the project under Article 18 of the Land Expropriation Act, the public notice of the approval of the project under Article 17 of the Land Expropriation Act, or the failure to file an application for adjudication within the period of project execution under each Act applicable mutatis mutandis under the Land Expropriation Act, the right to receive compensation for the land to be expropriated is not extinguished. Thus, the payment of compensation for losses is clearly established if the public notice of the approval of the project is given, and the claim for compensation for the business operator against the inmate at the pre

[2] Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that the provisions of paragraph (1) shall not apply to cases where it is deemed reasonable for an obligor to resist the existence or scope of the obligation until the obligor is declared a fact-finding court that declares the existence of the obligation. In this context, it is interpreted that the obligor's assertion against the existence or scope of the obligation is deemed reasonable.

[3] Although the Defendant’s appeal was accepted and the judgment of the court below was reversed prior to remand, but the judgment was rendered in the same way as the judgment of the court below prior to remand was accepted, it is reasonable to view that there was a reasonable ground to dispute as to the existence or scope of the Defendant’s obligation, until the judgment of the court below is rendered after remand.

[1] Article 563 of the Civil Procedure Act; Articles 14, 16, 18, and 29 of the Land Expropriation Act / [2] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings / [3] Article 3(2) of the Act on Special Cases Concerning

[1] Supreme Court Decision 93Nu19375 delivered on November 11, 1994 (Gong1994Ha, 3283), Supreme Court Decision 95Nu4889 delivered on December 5, 1995 (Gong1996Sang, 279), Supreme Court Decision 97Da47514 delivered on March 13, 1998 (Gong1998Sang, 1030) / [2/3] Supreme Court Decision 97Da6988 delivered on May 9, 197 (Gong1997Sang, 1732), Supreme Court Decision 96Da17202 delivered on July 14, 1998 (Gong198Ha, 198Ha, 2103), Supreme Court Decision 9Da96989 delivered on April 19, 199)

Plaintiff

Changwon-si (Law Firm Jinju General Law Office, Attorney Kim-Hy, Counsel for the plaintiff-appellant)

Supreme Court Decision 97Da47514 Delivered on March 13, 1998

Changwon District Court Decision 98Na2918 delivered on October 8, 1998

The part of the judgment of the court below against the defendant as to the damages for partial delay to be cancelled below shall be reversed. The part against the defendant in the judgment of the court of first instance (the changed due to the reduction of claim at the court below prior to the refund) which ordered payment of 10,048,700 won per annum from May 15, 1996 to October 8, 1998, and the part which ordered payment of 25 percent per annum from the next day to the date of full payment, shall be dismissed, and the plaintiff's claim corresponding to that part shall be dismissed. The remaining appeal shall be dismissed. The total costs of lawsuit shall be borne by the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

The claim for compensation for losses of a prisoner due to the expropriation of land occurs only due to the adjudication by the competent Land Tribunal on expropriation of land. However, the right of public project operators to expropriate the land publicly notified due to the announcement of project approval under Articles 14 and 16 of the Land Expropriation Act occurs under the condition that consultation with the person subject to expropriation should go through certain procedures, such as consultation with the person subject to expropriation. Unless special circumstances exist, such as the discontinuation of the project under Article 18 of the Land Expropriation Act, the public announcement of the project approval under Article 17 of the Land Expropriation Act, or the application for non-application for adjudication within the project execution period under each Act applicable mutatis mutandis of the Land Expropriation Act, the right to receive compensation for the land shall not be extinguished. Thus, if the public announcement of the project approval is made, the payment of compensation for losses shall be certain. Thus, the claim for the person subject to expropriation against the person subject to expropriation at the stage prior to the adjudication on expropriation of the project approval after the public announcement of the project approval shall be qualified

In light of the records, the court below's decision that the non-party 1's claim for land expropriation compensation against the defendant due to the expropriation of the land in this case owned by the non-party 1 was delivered to the defendant at the time when the assignment order of this case was delivered to the defendant, but the Central Land Expropriation Committee's adjudication was held before the adjudication but the occurrence of the right is certain as the compensation condition is already specified. Thus, the decision that the non-party 1's claim for land expropriation compensation is recognized is just in accordance with the purport of the judgment of remand

2. On the second ground for appeal

Upon examining the reasoning of the judgment below in light of the records, the court below is justified in rejecting the defendant's assertion that the agreement between the non-party 2 and the defendant on March 28, 1997, on behalf of the plaintiff, entered into an agreement with the plaintiff on condition of suspension which takes effect only with the plaintiff's consent, and its validity takes effect upon the non-party 2's failure to obtain the plaintiff's consent. The above agreement as of March 28, 1997 and the transfer of part of the claim for payment of deposit of this case extinguished. It is not erroneous in the misapprehension of legal principles as to the validity of the agreement in violation of the rules of evidence, as otherwise alleged in the ground of appeal by the defendant.

In addition, the court below's decision that the plaintiff received KRW 62 million from the above non-party 1's deposit withdrawal claim to the plaintiff is not due to ratification of the above agreement, but it is just to recognize that the plaintiff received the principal and interest claim of KRW 41.3 million which has already been determined separately, and the defendant received from the payment of the litigation costs, etc. of the retrial case.

3. On the third ground for appeal

The lower court determined that the Defendant is obligated to pay the Plaintiff the total amount of KRW 10,048,70,000, and that the Defendant is obligated to pay the amount plus damages for delay at the rate of 25% per annum under Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Special Cases”) from May 15, 1996 to the date following the delivery of a copy of the complaint of this case as to the above amount.

However, Article 3(2) of the Special Act provides that the provision of paragraph (1) shall not apply to a case where it is deemed reasonable for an obligor to resist the existence or scope of the obligation until a trial court declaring the existence of the obligation is rendered. Here, when it is deemed reasonable for the obligor to resist the existence or scope of the obligation, it shall be interpreted that the time when the obligor’s assertion in a dispute over the existence or scope of the obligation is deemed to have considerable grounds (see, e.g., Supreme Court Decisions 97Da6988, May 9, 1997; 96Da17202, Jul. 14, 1998; 98Da61968, Apr. 9, 199).

According to the records, with respect to the Plaintiff’s claim for full payment, the first instance court ordered the Defendant to pay the Plaintiff the amount of KRW 10,048,700, the amount of KRW 500 per annum from August 13, 1995 to May 14, 1996, the delivery date of the copy of the instant complaint from August 13, 1995, which is the date of the confirmation date of the assignment order, and damages for delay at the rate of KRW 25% per annum from the next day to the full payment date. The lower court rejected the Defendant’s appeal against the first instance judgment (However, according to the reduction of the Plaintiff’s claim, the above order of the first instance court was changed to pay damages for delay at the rate of KRW 10,048,70, the amount of KRW 25% per annum from May 15, 1996 to the date following the delivery date of the written complaint of this case, but the Defendant did not reverse the judgment of the lower court and remanded the judgment.

If the defendant's assertion was accepted in the judgment of remanding, it would be reasonable to view that there was a reasonable ground for dispute over the existence or scope of the defendant's obligation to repay, even though the judgment of the court below was rendered with the same contents as that of the judgment of the court below prior to remand in accordance with the plaintiff's newly raised argument after remanding. Nevertheless, the court below's order to pay damages for delay at the rate of 25% per annum per annum from the day following the delivery of a copy of the complaint of this case to the day of the original judgment after remanding the case was erroneous in the misapprehension of legal principles of Article 3 of the Act on Special Cases. The ground of appeal pointing this out is with merit. Thus, this part of the judgment below

This part is sufficient to be directly tried by the court, so the defendant shall make a self-determination pursuant to Article 407 of the Civil Procedure Act. The defendant shall return to the plaintiff 10,048,700 won from May 15, 1996 following the delivery day of the copy of the complaint of this case and the copy of the complaint of this case to October 8, 1998, which is the date of the decision of the court below, and shall pay damages for delay at the rate of 5% per annum under the Civil Act and 25% per annum under the Act on Special Cases from the next day to the full payment day. Thus, the plaintiff's claim shall be accepted only for the above amount, and the part ordering payment exceeding the above limit of the judgment of the court of first instance (amended by the reduction of the claim at the court below before the refund) shall be revoked and the plaintiff's claim for the cancellation portion shall be dismissed

4. Therefore, the part concerning delay damages in the Defendant’s appeal is justified, and the final judgment shall be accepted, and the remaining appeals shall be dismissed as it is without merit. All costs of the appeal shall be borne by the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)