209Guhap4143 Revocation of Disposition of Expropriation of Land

Guide A

Samsung Law Firm

[Defendant-Appellant]

Busan Metropolitan City Land Tribunal

Representative YB

Litigation Performers Kim C

Busan Urban Corporation

the president of the Representative D

Law Firm Cheong-do, Counsel for the defendant-appellant

[Defendant-Appellee]

February 26, 2010

March 19, 2010

1. On February 9, 2009, the decision of acceptance made by the defendant on February 6, 2009 against co-ownership 69/74 of co-ownership in the registry book-Eup, Busan Metropolitan City.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The order is as follows (the plaintiff filed an application with the Central Land Expropriation Committee as the defendant on July 2, 2009 and filed an application for correction of the defendant to correct the defendant to the Busan Land Expropriation Committee from November 11, 2009 to the Busan Land Expropriation Committee on November 12, 2009, but the court subsequently filed an objection against the plaintiff on November 12, 2009 without changing the plaintiff's objection to the expropriation from the Central Land Expropriation Committee to the expropriation ruling of the Busan Land Expropriation Committee, but the argument of this case was terminated without changing the plaintiff's objection to the expropriation ruling of the local Land Expropriation Committee from November 11, 2009, the plaintiff filed an application for correction of the defendant on December 11, 2009, and December 31, 2009, and from January 15, 2010, and sought revocation of the adjudication of the local Land Expropriation Committee as the plaintiff's expropriation of each of the preparatory documents as the plaintiff's expropriation of this case.

1. Details of ruling;

(a) A project to develop the dong Busan Metropolitan City Sightseeing Sightseeing Sightseeing Complex (the third project; the same shall apply hereinafter) approved and publicly notified of the development plan;

- Notice No. 2006-124 of Busan Metropolitan City on April 5, 2006

- Project implementer: Intervenor joining the Defendant (hereinafter referred to as “ Intervenor”);

B. Defendant’s acceptance ruling on February 9, 2009 (hereinafter “instant acceptance ruling”)

- Persons to be admitted: 69/74 shares in the area of 163 square meters in the Sin-si, Busan-gun, Busan-gun, the Plaintiff-owned (hereinafter referred to as “instant land”).

- Commencement date of expropriation: March 23, 2009

- Compensation for losses: 62,572,830 won

(c) Ruling by the Central Land Tribunal on July 2, 2009;

- Contents of adjudication: Increase in 1,018,310 won for compensation for the instant land

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 11-13, Eul evidence 1, Eul evidence 2-1, Eul evidence 2-2, Eul evidence 3, Eul evidence 4-2, the purport of the whole pleadings and the judgment

A. The plaintiff's assertion

The ruling of acceptance of this case shall be revoked as it is unlawful for the following defects.

1) The Mayor of Busan Metropolitan City was incorporated into a road zone on the ground that it is necessary to build an access road to the Dong Busan Metropolitan City on the ground that the construction project for expanding the access road to the Dong Busan Metropolitan City was implemented, and the alteration was publicly announced on August 26, 2004, based on the Plaintiff’s filing of objection and the results of site inspection. Although the Plaintiff was using the instant land as a restaurant parking lot with trust in the above alteration public announcement, the Mayor of Busan Metropolitan City approved the development plan for the Dong Busan Metropolitan City Sightseeing Tourist Complex with the content that the instant land is incorporated into a legal site without any special change in circumstances. Therefore, the instant approval plan is null and void as it violates the principle of trust protection or the principle of proportionality protection,

2) The intervenor included the instant land in the instant project site for the purpose of establishing a legal surface. Approach road to the Dong Busan Tourist Complex was already completed around December 2007, prior to the issuance of the instant expropriation ruling. Since there is no difference between the above access road and the instant land, it is not necessary to expropriate the instant land, since there is no need to install a legal surface in the future.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The plaintiff owned 35/518m (hereinafter referred to as the "land before division") of the Sin-gu, Busan, the Sin-gu, Busan, the Sin-si, the Dok-si, the Dok-si, the Dok-si, the Dok-si. The plaintiff sold 35/518 shares to the non-party Gongc1 on March 31, 2003, and the part of the ownership transfer registration was completed on

2) The Mayor of Busan Metropolitan City: (a) while implementing the construction project to expand access roads to the Dongsan Tourist Complex, incorporated the entire land before subdivision into the road zone; (b) accepted the Plaintiff’s land pointed out that the instant land is not necessary for the construction of the road; (c) on August 26, 2004, the Busan Metropolitan City announced a change of the content that only the remaining 35 m2 square meters of the land, except the instant land, among the land before subdivision, was incorporated into the road (hereinafter “instant change announcement”); (d) due to the said expansion project, the said expansion project made a public announcement on June 1, 2004: (a) the same Ri 1, 320 square meters of the land before subdivision; and (b) the same Ri 35 square meters of the land before subdivision as of September 9, 2004, respectively (the instant land is the instant land) and was expropriated.

3) On March 9, 2005, the head of Busan Metropolitan City: (a) designated and publicly notified the members of the Eup/Myeon in Busan as the Dongsan Tourist Complex pursuant to Article 50 of the former Tourism Promotion Act (amended by Act No. 7232 of Oct. 16, 2004; hereinafter the same) on March 9, 2005; (b) approved the plan for the creation of the Dongsan Tourist Complex that is implemented by the Intervenor pursuant to Article 52 of the Tourism Promotion Act; and (c) notified the plan (Public Notice No. 2006-124 of Busan Metropolitan City). On April 6, 2005, due to the error of the person in charge, the land of this case was included in the land

4) Since July 25, 2007, Busan Metropolitan City Notice No. 2007-279 of Busan Metropolitan City Notice No. 2007-349 of September 5, 2007, Busan Metropolitan City Notice No. 2007-424 of November 14, 2007, Busan Metropolitan City Notice No. 2007-424 of Busan Metropolitan City Notice No. 2007, Dec. 24, 2008, the Busan Metropolitan City Notice No. 2008-487 of Dec. 24, 2008, there was no change that the land of this case is included in the land of this case.

5) Meanwhile, on September 13, 2004, the Plaintiff purchased a two-story building of reinforced concrete structure on the ground, other than the instant land, from Nonparty 0C2 and operated a restaurant from January 10, 2005. The instant land is used as an access road to a restaurant and parking lot by the Plaintiff filled up the slope.

6) Access roads to the Dongsan Tourist Complex was completed on June 2006 by the first phase construction around 2006, and all the construction was completed on December 2, 2007 by completion of the construction work around 2, 2007, and there is no need to install the legal surface separately because there is no difference between the access roads established and the instant land.

[Basis] Evidence Nos. 2-1, 2, 3 through 5, evidence Nos. 6-1, 2, 7 through 10, evidence Nos. 15-1 through 5, Gap evidence Nos. 16-3, Gap evidence Nos. 19, Eul evidence Nos. 1, 3, 4-1, and 4-2, the commissioned judge's on-site inspection results, the purport of the whole pleadings

D. Determination

1) Determination as to the assertion on invalidation of prior disposition

A) Determination criteria

According to the provisions of Article 55 of the Tourism Promotion Act, the approval of a development plan by the Mayor/Do Governor under Article 52 of the same Act shall be considered as the project approval under Article 20 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. Such project approval has the nature of an administrative disposition that establishes a certain right to expropriate under the condition that it shall go through a certain procedure, and it shall be deemed that the scope of the subject matter to be expropriated is determined by obtaining such project approval and the right to expropriate shall bring about a kind of public law right that can oppose the present and future right holder. Therefore, in the above stage of the adjudication of expropriation where the period of litigation has already lapsed because there is a significant and obvious defect in the above disposition of the project approval, the revocation of the adjudication of expropriation cannot be claimed on the ground that it is unlawful and unreasonable (see Supreme Court Decision 87Nu395, Sept. 8, 1987).

B) Whether such a violation violates the principle of trust protection

In general, in administrative legal relations, the principle of protecting the trust of the administrative agency's acts should be applied: first, the administrative agency should issue an official opinion that is the object of trust to the individual; second, the administrative agency should have trusted that the expression of opinion is justifiable; third, the administrative agency should have trusted that the name of opinion was in violation of the above opinion; fourth, the administrative agency's disposition against the above opinion's name was in violation of the interest of the individual; fourth, the administrative agency's disposition is unlawful as it goes against the principle of protecting the trust (see, e.g., Supreme Court Decision 96Nu18380, Sept. 12, 1997). Thus, the administrative agency's disposition of this case is unlawful as it is against the principle of protecting the trust (see, e.g., Supreme Court Decision 96Nu1830, Sept. 12, 1997; 1) the head of Busan Metropolitan City, which was an administrative agency's new construction of access road to the cafeteria; and 2) the land of this case is no longer available.

2) Determination as to the assertion that there is no need for expropriation

A) The public expropriation is a compulsory acquisition of a specific property right for a public project by law. As such, there is a need for the public project. As to whether there is such need, the existence of public interest to justify the other party’s infringement of the other party’s property right pursuant to the expropriation ought to be proved as a result of the comparison and balancing of interests between both parties (see Supreme Court Decision 2003Du7507, Nov. 10, 2005). The scope of an object to be expropriated ought to, in principle, be limited to the minimum extent necessary for the project (see Supreme Court Decision 93Nu8108, Jan. 11, 1994).

B) According to the above facts, although the land of this case was incorporated into the project of this case for the purpose of building a road surface, it is recognized that the land of this case was already incorporated into the project of this case for the purpose of building a road surface, but it was no longer necessary to build a legal surface as it was created in a timely manner by the Plaintiff’s construction of the land of this case for the purpose of using it as a parking lot site. Thus, it is reasonable to view that the Defendant’s ruling of acceptance of this case excessively infringes the Plaintiff’s property right beyond the necessary scope for accomplishing the purpose of the project of this case. Accordingly, the Plaintiff’s assertion pointing this out is

[1] The Supreme Court Decision 93Nu19375 delivered on November 11, 1994 is that the project approval under Article 14 of the Land Expropriation Act has the nature of administrative disposition giving a certain right to expropriate under the condition that it shall go through a certain procedure, and the scope of the object to be expropriated is determined by obtaining the project approval, and the right to expropriate has become effective as a kind of right in public law which can oppose the present and future right holder. The Land Expropriation Act provides that the portion belonging to the project approval which is the first stage of expropriation and use shall be worked to the project approval institution in the determination of the public interest of the project. Since the land expropriation procedure is divided into two minutes of the land expropriation procedure and the nature of the project approval and the contents of Article 29(2) of the Land Expropriation Act stating the matters to be adjudicated by the Land Expropriation Committee, the land expropriation committee does not have the meaning of the scope of the right to expropriate the land exceeding the scope of the right to expropriate, in principle, to the extent that the project approval can not be revoked (see, e.g., the meaning of the scope of the right to expropriate). the area of the land to expropriate.

3. Conclusion

Therefore, the claim of this case is justified and it is so decided as per Disposition.

The presiding judge, judge and associate judge;

Judges' Quota

Judges Choi Young-chul