In case of compensating for losses on remaining land due to the acquisition or use of part of the land pursuant to Article 73 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, the scope of losses to be compensated.

Article 73 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 8665 of Oct. 17, 2007)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Young-chul and 1 other, Counsel for plaintiff-appellant)

ELAD Construction Co., Ltd. (Law Firm Jeong, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Law Firm Doll, Attorneys Gyeong-jin et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Nu2267 decided September 30, 2010

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the Plaintiff’s appeal

A. According to Article 73 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “Public Works Act”), when the price of the remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same landowner, the landowner may claim compensation for the remaining land. In such cases, the losses to be compensated include not only the losses incurred due to the price formation factors such as the land conditions or access conditions due to the acquisition or use of part of the land, but also the losses incurred due to the acquisition or use of the land, the form, structure, and use of the facilities to be installed as a result of the implementation of the acquisition or use of the project, but also the future availability of the land at the time of the decision on expropriation, and the price of the exchange value due to the ease of transactions, etc. (see Supreme Court Decisions 97Nu10680, Sep. 8, 1998; 209Du395.

B. The lower court, based on its stated reasoning, dismissed the Plaintiff’s claim for compensation for losses on the remaining land by determining that the price of the remaining land of this case was reduced or cannot be deemed as losses due to expropriation of the land of this case.

C. However, we cannot accept the above determination by the court below for the following reasons.

According to the evidence of the fact-finding court, the land of this case and the land of this case and the land of this case and the land of this case 101-5, 6 woodland 101-5, and 3 woodland 101-1, and 3 woodland 100 were owned by the Korea Land Corporation (which was changed to Korea Land Corporation, April 20, 1993), which was located between the land of this case and the land of this case and the land of this case and the land of this case 101-5, 6 woodland 101-2 road (the national road of this case was composed of a part of the national road of this No. 42) and the land of this case were divided into straight lines, but the land of this case and the land of this case were divided into Korea on Oct. 14, 1996, and the land of this case were acquired on Mar. 31, 200, the boundary of the above 101-5, and 6 woodland 101-2, and it appears to be used for the defendant's construction of this case.

Examining these circumstances in light of the legal principles as seen earlier, it is difficult to readily conclude that the instant land and the remaining land are land entirely impossible to pass on national highways, etc. from before the Defendant’s urban planning facility project to 42 times prior to the Defendant’s urban planning facility project. On the other hand, the remaining land of this case can be deemed as the Defendant’s urban planning facility project’s passage on public roads, such as national highways, 42 times. As such, the remaining land of this case can be said to have been placed more heat than before in terms of traffic convenience or future availability, etc. As long as the aforementioned heat is recognized, the appraisal result of the Nonparty of the first instance court appraiser’s appraiser’s appraisal to the purport of recognizing the reduction in prices of the remaining land of this case shall not be easily rejected.

D. Nevertheless, the lower court’s dismissal of the Plaintiff’s claim for compensation for losses on the remaining land by rejecting the Nonparty’s appraisal result on the grounds of the circumstances indicated in its reasoning without sufficiently examining the aforementioned 101-2 road and mountain 101-5, and mountain 6 forest areas, etc., was erroneous by misapprehending the legal doctrine regarding the requirements for compensation for losses on the remaining land under Article 73 of the Public Works Act, or by failing to exhaust all necessary deliberations, and such illegality has influenced the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the defendant's appeal

The court below adopted the appraisal result of the non-party appraiser who seems to have made an adequate appraisal of the remaining land of this case among various appraisal results present in this case, and adopted the appraisal result of the non-party appraiser who seems to have made an adequate comparison with goods, etc., and determined compensation accordingly. In light of the relevant legal principles and records, the above measures of the court below are justified, and there is no violation of law such as misunderstanding of legal principles

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)