(영문) 의정부지방법원 2019.7.4. 선고 2017구합11447 판결

1. The defendant shall pay to the plaintiff A 138,036,720 won, 137,142,870 won, and 12% interest per annum from November 23, 2016 to November 15, 2018, and 5% interest per annum from the next day to the date of full payment.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details, etc. of ruling;

(a) Approval and public notification of the project;

○ Project Name: C Private Investment Project

○ Project Operator: Seoul Regional Construction and Management Administration

○ Public announcement of project approval: D Public Notice of the Ministry of Land, Infrastructure and Transport on August 7, 2015

(b) Adjudication on expropriation by the Central Land Tribunal on September 29, 2016;

○ Object of expropriation: Each land listed in the column for expropriation on attached Table 1. Table 1. (The total of "each land in this case" shall be referred to as "each land for which the plaintiff claims the increase of compensation," and the individual land shall be specified as its parcel number).

○ Compensation for losses for expropriation ruling: Attached Form 1. The amount stated in the compensation column for expropriation ruling;

○ Commencement Date of Expropriation: November 22, 2016

○ Appraisal Agency: E and F.

○ Compensation for losses for an objection: Attached Form 1. The amount indicated in the compensation column for the objection ruling;

○ Appraisal Agency: G, Inc. H

[Ground of recognition] Evidence No. 1, Evidence No. 2-1, Evidence No. 2-2, Evidence No. 3, Evidence No. 4-1, 2, Evidence No. 1, 2, Evidence No. 4-2, and the purport of the whole pleadings and arguments No. 4-7

2. The plaintiffs' assertion

Among each of the instant lands, the land category of 5,669 square meters on the public register is forest land, but was actually used as electricity, road, ditch, etc. However, among the parts previously used, 937.24 meters has been used before the lawful change of the form and quality prior to 1960, it should be evaluated as a previous one according to the actual use situation, and the remainder should be assessed as 8.37 square meters in a road, ditch 6.23 square meters in a ditch 6.23 square meters in a forest, and forest 4,717.16 square meters in a forest. However, the adjudication on each of the instant lands shall be assessed as forests and fields, and the amount of compensation should be assessed as unjust. Accordingly, the Defendant is obliged to pay the reasonable compensation in accordance with the court’s appraisal result determined the compensation amount, as alleged by the Plaintiff, as well as compensation for the difference thereof, and compensation for delay.

3. Relevant statutes;

Attached Form 2. The entry in the relevant statutes is as follows.

4. Determination

A. Judgment on the status of use of the land at issue

1) Legal principles on land change compensation for illegal form and quality change

According to Article 70(2) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) and Article 24 of the Enforcement Rule of the Land Compensation Act, the amount of compensation for land should be calculated according to the actual state of use. Thus, in order to calculate the amount of compensation due to the original state of use or the current state of use at the time of changing the form and quality of land on the ground that the land subject to expropriation is temporary or illegal changes in the form and quality, it is necessary to prove that the land subject to expropriation is an unlawful change in the form and quality of the land. In addition, in order to recognize the land subject to expropriation as an illegal change in the form and quality of land, it is insufficient to simply say that the form and quality of the land subject to expropriation are different from the land on the public register. Nevertheless, it is necessary to prove that the permission or duty to report under the relevant Acts and subordinate statutes exists at the time of changing the form and quality of the land subject to expropriation, and that the change in form and quality was

2) Regulation of laws and regulations relating to the clearing or alteration of form and quality of land, the category of which is “forest”;

According to Article 2 of the former Telecommunication Decree (amended by Act No. 10, Jun. 20, 191; Act No. 881, Dec. 27, 1961; Act No. 2 of the Addenda of the Forestry Act enacted on Jan. 20, 1962); Article 1 subparag. 3 of the former Regulations on the Restriction of Private Forest City (wholly amended by Act No. 5, Mar. 17, 193; Act No. 2 of the Addenda of the Forestry Act before repealed by Act No. 25, Jan. 19, 1962); Article 1 subparag. 2 of the former Enforcement Decree of the Forestry Act (wholly amended by Act No. 10635, Jun. 27, 1961; Act No. 2513, Mar. 16, 196; Act No. 10681, Mar. 28, 201).

3) Facts of recognition

A) The Court appraiser J assessed the airline margin of the disputed land and determined as follows.

① The land at issue in the aerial photography taken in 2014 was used for about 1,010.81 square meters in total of the area of the arable land ( approximately 983.83 square meters in dry field + about 26.98 meters in dry field), about 4,574.94 meters in total of the forest area ( approximately 30.51 meters in land in the road construction + about 4,544.43 meters in natural forests), about 4.4 meters in the site of the building, about 8.34 meters in public notice, about 8.37 meters in square meters in public road, about 6.23 meters in ditches, about 39.87 meters in yellowland.

② Around 1966, the key land was used as approximately approximately 2,267.23 meters in total as the place of cultivation, and approximately 3,401.77m in total as the forest area ( approximately 2,17.57m in forest construction + about 1284.2m in natural forest).

③ The portion used as a arable land in around 1966 among the key land was used as approximately KRW 937.24m, approximately KRW 39.87m, KRW 8.37m, approximately KRW 6.23m, approximately KRW 6.23m, and approximately KRW 1,275.52m, in 2014.

B) Meanwhile, the Defendant requested K Co., Ltd. (Seoul in 1966, hereinafter “K”). On August 18, 2016, K can divide the key land into 3,608 square meters of forest land and 2,061 square meters of forest land in 1966, and it is determined that it was impossible to cultivate the area of the bed land in 1966 and that it was created in the natural forest as of 1974 and 1985 after the land reclamation in 1966.

C) At the time of the adjudication of expropriation and objection, the appraisal agency assessed the amount of compensation by deeming the actual use of the land in question as the forest and field as the actual use of the land in accordance with the Defendant’s request according to K’s reading. The appraisal agency assessed the amount of compensation by regarding the land in question as both forest and field, as at the time of the adjudication. At the request of the Plaintiffs’ request for supplementary appraisal, the following was deemed to be the previous 937.24m square meters of the land in question, 8.37m square meters of the land in question, to be the road, 6.23m square meters of square, to be the road, and the remaining 4,717.16m of square meters of forest and field. The amount of compensation for the land in question according to the result of the court supplementary appraisal

[Based on recognition] Gap evidence Nos. 5, 6, Eul evidence Nos. 4 to 7, Eul evidence Nos. 8-1 to 8-3, the result of the appraiser J's appraisal, the result of the appraiser M's appraisal and supplementary appraisal, the purport of the whole pleadings

4) Determination

In light of the aforementioned legal principles, the evidence revealed earlier, the appraiser J of this court, and the fact-finding results with respect to M, and the following circumstances, which can be recognized by comprehensively considering the purport of the entire pleadings, are reasonable to assess the compensation by evaluating the following circumstances as forest land: (a) the period of square meters among the disputed land is the preceding; (b) the period of square meters is 937.24m; (c) the period of square meters is 8.37m square meters; and (d) the period of square meters

A) An appraiser J made an appraisal in 2014 by selecting and appraising the most suitable photograph to determine the use at the time of the ruling on expropriation of the disputed land among the active airlines in 2014 to 2016. Moreover, there is no circumstance to deem that there was no particular change in the use of the disputed land in 2016 at the National Land Geographic Information Institute, and after 2014, there is no reason to deem that there was a special change in the use of the disputed land between the time of the ruling on expropriation and the time of the ruling on expropriation (the Defendant did not claim that there was a difference between the use at the time of the ruling on expropriation and the time of the ruling on expropriation and the time of the ruling on expropriation). Therefore, the actual use of the disputed land at the time of the ruling on expropriation of the land at issue was 1,010 square meters in 2014, 8.37 square meters in 237 square meters in a road, 6.4m in a building site, 24m, 34m24m.

B) From among the above arable areas, 937.24 square meters were already used as farmland for 196 years as a result of appraiser J’s appraisal. ① The 2,061m of land at issue was already reclaimed in around 1966. K is the 7-year area below the left side and the 1,361m of land below the 7-year area below the 9-year area below the 1966 area and the 9-year area below the 9-year area below the 9-year area below the 9-year area below the 196-year area below the 9-year area below the 5-year area below the 196 area below the 5-year area below the 5-year area below the 5-year area below the 196 area below the 196-year area below the 196-year area below the 5-year area below the 196 area below the 1-year area below the 5-year area below the 196-year area below.

C) Among the issues of land, 937.24m (hereinafter referred to as “clow arable land”) was already used as farmland for cultivation around 1966 and its gradient was less than 20·30m (hereinafter referred to as “clow arable land”) so in order to be deemed as a case where the amount of compensation is calculated on the basis of “forest before changing the form and quality on the ground of an unlawful change in the form and quality” as to the land used as farmland for cultivation, the Defendant, as the claimant, had already been in need of permission, etc. in order to develop the farmland already developed in around 1966 as it constitutes a reserved forest, etc., or there was no proof that the portion of the arable land was reclaimed without permission, etc., or that it was cleared after the enactment and enforcement of the former Forestry Act on June 27, 1961 and on January 20, 1962. However, the Defendant did not prove that it was subject to permission, etc. under each of the above Acts.

D) However, around 1966, the current state of use of farmland was an orchard, and the current state was changed to dry field. However, in light of the fact that an orchard constitutes farmland (see Article 2 of the Farmland Act), the fact that farmland is excluded from a mountainous district requiring permission or reporting when converting a mountainous district under the Mountainous Districts Management Act (see Article 2 of the Mountainous Districts Management Act), Article 12(4) of the former Act on Special Measures for Designation and Management of Development Restriction Zones (Amended by Act No. 15990, Dec. 18, 2018); and subparagraph 1(e) of attached Table 4 of the Enforcement Rule of Article 12 of the Enforcement Rule of the same Act, changing the form and quality of land to a rice field or dry field within a development restriction zone is an act that can be done without permission or reporting, even if there was a change in the form and quality of land from an orchard to a dry field, it cannot be readily concluded as an unlawful change in the form and quality of land.

A) On the other hand, around 1966, the part already cultivated was used as a road 8.37m or 6.23m or 6.23m or above as a ditch at the time of the ruling of expropriation (Around 1966, according to the airline dust in 2014, the relevant part is a road used for cultivation adjacent to the arable area or a waterway used for Sincheoncheon City). As seen earlier, it is difficult to view the part already used as a arable area in around 1966 as an illegal form and quality alteration. Even if the change to a road or ditch is an illegal form and quality alteration, the amount of compensation should be assessed as a arable land at the time of the alteration of the form and quality.

However, the Plaintiff asserts that the relevant part should be assessed as a road or ditch, and the road and ditch site should be assessed within the limit of 1/3 of the appraised value of the neighboring land (see Article 26(1)2 and (3) of the Enforcement Rule of the Land Compensation Act). Accordingly, the court’s supplementary appraisal result also assessed the value of the above part of the road or ditch among the disputed land at the value of 1/3 of the cultivated land. Even if the above part is assessed as an orchard, the said amount would be larger than the above 1/3 amount. As so, as alleged by the Plaintiffs, the 8.37m of the disputed land is the road, and the 6.23m square meters of the disputed land is assessed as a ditch (the Defendant did not make any assertion despite the statement of the court’s seat indicating the disputed part in the event of dispute as to the assertion on the land use status of the disputed land).

F) There is no dispute between the parties on the assessment of the land of a building site of 4.4 m2, vacant land of 24.34 m2, and yellow land of 39.87 m2 as forest land among the issues in question, and there is no dispute between the parties on the assessment of the land of 4,717.16m in the land of the issue, including the above part (i.e., a square of 5,69m - a square of 937.24m - a square of 8

(b) Calculation of a reasonable amount of compensation;

1) As seen earlier, the pertinent land shall be calculated by evaluating the amount of compensation as forests and fields, from among the following points: (a) the period of square meters for 937.24m of land, the road for 8.37m of square meters, and the remaining 4,717.16m of land for 6.23m of square meters, and the remaining 4,717m of land for 4,717.16m of land for 6. However, inasmuch as the adjudication on expropriation and its objection made an assessment of the pertinent land as forests and fields, it is unreasonable

2) In a lawsuit on the increase or decrease of compensation, in cases where the appraisal by each appraisal agency, which forms the basis for the objection to the appraisal method, and the appraisal by the court appraiser, have no illegality in the appraisal method, and there is no difference in the appraisal result (the appraised value of the land expropriated) due to a somewhat different relationship between individual factors and the appraisal method, even though there is no evidence to find any error in the appraisal method only with respect to the individual factors. As long as there is no evidence to find any error in the appraisal, adopting any one of the appraisal methods and recognizing it as a justifiable compensation amount is within the discretion of the court unless it is contrary to the logical rule and the empirical rule (see, e.g., Supreme Court Decision 2002Du4679, Jan. 28, 2005). In this case, the appraisal by the court appraiser is deemed to have any error in the appraisal method or in the contents of the individual comparison method, and thus, it is difficult to deem that there is a difference in the appraisal amount of the land at least 14th appraisal by each court rather than the individual appraisal method.

3) Accordingly, if a reasonable amount of compensation for each of the instant lands is calculated, the amount of compensation for the Plaintiff’s land out of each of the instant lands is equal to the amount indicated in the “Supplementary Court Appraisal Amount” column, and the total amount of compensation for the Plaintiff’s land is KRW 817,206,940, and the amount of compensation for the Plaintiff’s land owned by the Plaintiff B is KRW 669,748

C. Sub-decision

Therefore, the defendant is obligated to pay to the plaintiffs the sum of the amounts stated in the separate sheet as the difference between the reasonable compensation and the compensation amount stated in the separate sheet, to the plaintiff A the 138,036,720 won, to the plaintiff B the 137,142,870 won, and to the plaintiff B the 137,142,870 won, and to the above money from November 23, 2016 following the date of expropriation commencement to November 8, 2018, as requested by the plaintiff, 5% per annum under the Civil Act until November 15, 2018, after the delivery date of the copy of the request for change of the purport of the claim and the cause of the claim, and to pay damages for delay calculated at the rate of 12% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from

5. Conclusion

Therefore, since the plaintiffs' claims are well-grounded, it is decided as per Disposition by admitting all of them.