Samsung Industrial Co., Ltd. (Attorney Song-ho et al., Counsel for the defendant-appellant)

The Minister of Land, Infrastructure and Transport

The Administrator of the Cultural Heritage Administration and two others (Attorney Jeong-ju et al., Counsel for the defendant-appellant)

August 29, 2017

Daejeon District Court Decision 2016Guhap100965 Decided January 19, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

1. Purport of claim

The Defendant’s public announcement of the project for restoring and maintaining the soil of Pungdong, Seoul, as Seoul, No. 2016-39 announced by the Ministry of Land, Infrastructure and Transport on February 5, 2016, is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On October 1, 2013, the Plaintiff was established by dividing the business of manufacturing and selling aggregate, concrete, asphalts, etc. from Samdae (former trade name before the change: Samdae Industrial Co., Ltd.) and operated a business by transferring all rights to the factory and business facilities, etc. of Songpa-gu Seoul (Seoul) (hereinafter referred to as “Plaintiff” without distinguishing the Plaintiff and the stock company’s sign) (hereinafter referred to as “the Plaintiff”). The Plaintiff owned the land Nos. 1 through 28 as stated in the “former Land Status” column in the “former Land Status” column in the attached Table 1 [Attachment 1] List (hereinafter referred to as “former Land Number No. 1” in this case) on the ground of the above land (hereinafter referred to as “instant factory site” in this case, and its site is established and operated from around 197 to 28 years).

B. Of the instant factory site, the land (number 1 omitted), (number 2 omitted), (number 3 omitted), and the land (number 4 omitted), the old (number 4 omitted), and (number 5 omitted), totaling 125,250 square meters of 207 parcels, including the land (number 5 omitted), owned by the Plaintiff, was designated as the land of Gwangju Pung-ri (title 11 omitted after the alteration: hereinafter “the first private designation”) under the Ordinance of the Ministry of Culture, Sports and Tourism No. 174 on January 21, 1963, which was private cultural heritage No. 11, Gwangju Pung-ri (hereinafter “the first private designation”).

C. During the construction of new private houses to the Plaintiff’s ownership (number 6 omitted), (number 7 omitted), (number 8 omitted), (number 9 omitted), (number 11 omitted), and (number 12 omitted) (hereinafter “instant private house site”) adjacent to the instant factory site, protruding away from the underground to the white field, such as earth and sand and numeral stone. The Administrator of the Cultural Heritage Administration (hereinafter “the Intervenor”), following the drilling and excavation investigation by the National Cultural Heritage Research Institute, by the Defendant’s supplementary intervenor designated the instant private house site as 11 under Article 203-39 of the Notification of the Cultural Heritage Administration on July 4, 2003 as a private house (hereinafter “the Plaintiff’s supplementary designation”).

D. Since then, the Administrator of the Cultural Heritage Administration intends to designate, preserve and manage cultural heritage in order to restore the original form and efficiently manage the earth’s area of a scenic wall, the Intervenor designated the instant factory site as State-designated cultural heritage on May 31, 2004 (attached Table 1) Nos. 5 through 9, 11, 12, 13, 16, and 19 as indicated in the table of the Cultural Heritage Administration’s Notice No. 2004-30 on May 31, 2004 (hereinafter “second additional private designation”); and on February 5, 2005, under Article 205-6 of the Notice of the Cultural Heritage Administration, the Intervenor additionally designated the instant factory site [Attachment Table 1] Nos. 4, 10, 14, 15, and 20 or 28 on February 5, 2005 (hereinafter “third additional private designation”).

E. On November 11, 2003, the head of Songpa-gu Seoul Metropolitan Government (hereinafter referred to as the “head of Songpa-gu Office of Intervenor”) announced the public announcement of the project on the project to restore Gwangju Pung Pursuant to Article 20 of the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter “Land Compensation Act”), among the instant factory site, (number 1 omitted), (number 1 omitted), (number 2 omitted), land (number 3 omitted), and land owned by the Plaintiff (number 4 omitted), (number 4 omitted), (number 5 omitted), and land (number 5 omitted), 10,217 square meters in total as planned area for the project to restore Gwangju Pung Pung Pong Pung Pung (name 11 omitted). The Defendant (the Minister of Construction and Transportation at that time) announced the public announcement of the project on December 29, 2003, based on Article 22 of the Land Compensation Act.

F. From December 2003, the Plaintiff and the Intervenor head of Songpa-gu followed the procedure for acquiring consultation on the instant factory site and the instant temporary housing site from around December 2003 to the implementation of the Gwangju Pungsung Restoration Project, and as a result, the Intervenor’s Intervenor Seoul Special Metropolitan City (hereinafter “Supplementary Seoul Special Metropolitan City”) followedly from December 2003 to January 2014, the Plaintiff and the Intervenor completed the registration of ownership transfer by consultation on the instant temporary housing site (hereinafter “instant temporary housing site”) and the land indicated in Nos. 1 through 16 of the title [Attachment 1] of the instant factory site [Attachment 1] from December 2003 to January 2014.

G. Meanwhile, in order for the Intervenor to continue to operate the factory of this case in the process of acquiring the factory site of this case on an annual basis by some parts of the factory site of this case as seen above, the Intervenor head of Songpa-gu, the Intervenor entered into a loan contract with the Plaintiff or granted permission for use to the Plaintiff since January 2004 with the delegation of the Intervenor Seoul Special Metropolitan City.

H. On November 11, 2015, the intervenor head of Songpa-gu did not hold consultation on each of the lands owned by the plaintiff among the instant factory site (attached Form 1) Nos. 17 through 28. On November 1, 2015, the intervenor head of Songpa-gu publicly announced the application for the approval of the project of the above land (hereinafter “instant site subject to expropriation”) and the instant plant building and obstacles on the surface of the instant land subject to expropriation only to accommodate the instant factory building and obstacles on the instant land. For this reason, the plaintiff presented his opinion to the intervenor head of Songpa-gu to withdraw the application for the approval of the project on the ground that the private interests infringed upon by the above application for the approval of the project violate the principle of significant and proportionality.

I. On February 5, 2016, the Defendant issued a public announcement of the instant project approval (hereinafter “public announcement of the instant project approval”) with the head of Songpa-gu Office as indicated in the Ministry of Land, Infrastructure and Transport Notice No. 2016-39 (attached Form 2) on February 5, 2016, upon the application for project approval by the head of Songpa-gu

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5, 9 through 13, 31, Eul evidence Nos. 1 through 3, 7, Eul evidence Nos. 1 and 3, and the purport of the whole pleadings

2. Whether the public announcement of this case is lawful

A. The plaintiff's assertion

The instant public announcement of project approval is unlawful due to defects or failure to meet the requirements prescribed by relevant statutes as follows.

1) Defects in private designated dispositions (hereinafter “instant Claim”)

Although the Administrator of the Cultural Heritage Administration must conduct a prior investigation, etc. to confirm the existence of a plastic wall, a sexual view, etc., on the instant factory site, and then to dispose of the private designation. However, since the instant factory site is not in compliance with the procedures prescribed by the Cultural Heritage Protection Act, such as a prior investigation, etc., and is designated as a private site, the secondary and third additional private dispositions are unlawful. Each of the above private dispositions and the public announcement of the project approval of this case are related to the subsequent disposition, and thus, the public announcement of the project approval of this case, which is a subsequent administrative disposition, is also unlawful due to the defect

2) Defects in the project implementation entity (hereinafter “section 2”).

A) According to Article 83(1) of the Cultural Heritage Protection Act, a project that expropriates State-designated cultural heritage is eligible to be implemented only by an intervenor who is the authority designating State-designated cultural heritage. Thus, the intervenor head of Songpa-gu cannot become an implementer of the instant project that expropriates the factory site of this case, which is State-designated cultural heritage. Accordingly, the instant public announcement of project

B) The instant project approval violates the principle that the project implementer and the purchaser of consultation are required to perform the public works based on the law, as it is inconsistent with the formal project operator (the head of Songpa-gu), the substantial public works and the purchaser of land (the intervenor Seoul Special Metropolitan City or the Administrator of the Cultural Heritage Administration). The participant, who is the project operator, did not have the intent to perform the project and the ability to perform the project in relation

3) Defect in the method of implementing the project (hereinafter “third-party Chapter”).

A) The instant project is merely a part of the restoration and maintenance project of the entire scenic area, and thus is not eligible for project approval. The Plaintiff’s industrial site of this case is the object of project, and only the Plaintiff’s industrial site of this case is considered as the object of project, and the nature of “routture expropriation” derived from the purpose of relocating the factory of this case. Thus, the project approval of a law that only part of the land is the project implementation district for the purpose of cutting a specific landowner into the project site without a large scope of project base is not allowed, and thus, the instant

B) The head of Songpa-gu Seoul Metropolitan Government and the Intervenor were compensating for the instant factory site in a manner that annually acquired land through consultation and imposes rents on the land acquired through consultation due to lack of business expenses. This is unlawful as it violates the principle of lump sum compensation and advance compensation as prescribed by the Land Compensation Act.

4) The absence of business objectives and necessity (hereinafter “instant Chapter”)

A) It was not revealed that the existence of the documentary wall exists, and even if the documentary wall exists, the site subject to expropriation of this case is presumed to be the “natural person” outside the plastic wall rather than the site of the stomulious wall. Thus, there is no cultural heritage subject to the instant project in the site subject to expropriation of this case, and there is no eligibility under Article 83(1) of the Cultural Heritage Protection Act, since there is no cultural heritage subject to the instant project in the site subject to expropriation.

B) In relation to the purpose of expropriation, the instant project is to excavate buried cultural heritage and to create an artificial cultural environment, and there is no purpose of preservation and management for maintaining the original form of cultural heritage, and thus, it cannot be a public project under the Cultural Heritage Protection Act.

C) The restoration of plastic walls without academic research and historical research cannot be a project that maintains the authenticity and value of cultural properties, and it is difficult to deem that there is a need for the project because it constitutes excessive restoration to artificially restore the strong floor or lost sexual wall parts in the white age.

5) Violation of the principle of proportionality (hereinafter “Section 5”).

Considering the project cost of a huge scale required for a project for restoring and maintaining the entire wind, including the instant project, the surrounding environment of wind, and the remaining conditions of cultural properties, there is no possibility of early realization of the project, and there is no need for early completion of a project for conducting a flexible excavation and investigation conducted underground in the absence of academic research and historical research. On the other hand, considering the degree of infringement of the right to life of interested parties, such as the Plaintiff, the workers belonging to the Plaintiff, and the article of ready-mixed Transport Vehicles, etc., which may be caused by the suspension of the operation of the instant plant due to the implementation of the instant project, the instant public announcement of the project is unlawful because the comparative balancing between the public interest that may be achieved by the project and the private interest infringed upon

B. Relevant statutes

[Attachment 3] The entry is as follows.

(c) Fact of recognition;

1) Pungsung: (a) was released in large volume due to the large flood in 1925, and its existence became known to the academic community first; and (b) was designated as an area 38,202 square meters (126,066 square meters) in which the sexual range of Pungsung remains in 1936 as an early sentence 27. Since the Gungpy, the Government designated the entire area designated as a 11 Pungpy of State-designated cultural heritage as the 11th day of January 21, 1963 as a private land; and (c) even until this time, there was strong view that the Pungpy was presumed as the water rain in the white era, and thus, it did not receive attention from academic circles without any investigation. Since the Seoul Special Metropolitan City’s administrative district was expanded, the Pungpy was incorporated into Seoul Special Metropolitan City, and the area was excluded from the urban area designated as a private land due to the development of this area.

2) Around 1997, a large quantity of relics was discovered at apartment reconstruction sites located in the apartment site located in the vicinity of the Pungsung, and a large quantity of relics was released, and accordingly, the National Cultural Heritage Research Institute had conducted an urgent excavation investigation on several occasions, and there have been opinions to presume the Pungsung to be the stimulity of the Pungsung. Accordingly, the Government held the State Council on June 200 and decided to preserve the inside area of Pungsung, and the Administrator of the Cultural Heritage Administration additionally designated the neighboring land of Pungsungsung for several times since 200 to the end. The size of private land designated as a private area related to Pungsung is 379,984 square meters.

3) The Administrator of the Cultural Heritage Administration formulated a basic plan for the preservation, management, and utilization of the soil contamination on October 2002, divided the scenic wall presumed section, the earth’s internal presumption area, the earth’s external and tsunami presumed area. On April 2009, the said plan was revised to divide all of the stopy areas into six regions, focusing on the preservation of core areas, such as soil, etc., and the concentration of concentration on the preservation of the stoke culture, etc., and the other areas is to devise differentiated measures for the preservation and utilization in line with the characteristics of the region, such as the relaxation of regulations, etc. The head of Songpa-gu Office established an implementation plan in accordance with each of the above basic plans from December 2, 2003 to January 2017, the Intervenor acquired the ownership of the said land by consultation on the acquisition of the ownership of the said land by the Intervenor.

4) Although the Administrator of the Cultural Heritage Administration put about about about 486.6 billion won in a scenic area for about ten years, he/she found the king from among the purchased land only at a level of 30%, and the period of land compensation has been prolonged due to budgetary problems, the Intervenor changed the basic plan on January 10, 2015 and changed the initial goal to move to the core area (II) within six areas, and changed the policy direction in the direction of mutual growth between the cultural property and the residents. The summary of the basic plan on the preservation, management, and utilization of each scenic field in 209 and 2015 is as shown in the table [Attachment 4].

[Ground of recognition] Facts without dispute, Gap evidence 3, Eul evidence 8, Eul evidence 9, Eul evidence 2, 18, Eul evidence 13, the purport of the whole pleadings

D. Determination

1) As to the Plaintiff’s first proposal

A) Whether a private designation disposition is unlawful

According to Article 25 of the Cultural Heritage Protection Act and Article 11 of the Enforcement Decree of the same Act, for State-designated cultural heritage, which has important information in understanding the social and cultural life in the historical and academic era or historical era, among State-designated cultural heritage, the Administrator of the Cultural Heritage Administration requests at least three relevant experts, such as cultural heritage members or expert members in the relevant field of the Cultural Heritage Committee, to conduct an investigation; to prepare an investigation report and submit it to the Administrator of the Cultural Heritage Administration; and to the Administrator of the Cultural Heritage Administration, if the Administrator of the Cultural Heritage Administration deems that the relevant cultural heritage is worth designating as State-designated cultural heritage after reviewing the investigation report, he/she shall give notice of the relevant matters for at least 30 days in the Official Gazette; and the Administrator of the Cultural Heritage Administration shall determine whether to designate State-designated cultural heritage after deliberation by the Cultural Heritage Committee within six months from the date the notice is completed. Accordingly, it can be seen that the Cultural Heritage Committee requests a private cultural heritage expert to conduct an investigation, and there is no provision that requires the prior investigation to be conducted in the process.

According to the purport of the argument in the statements Nos. 6 through 12, and No. 3 of Eul, the Administrator of the Cultural Heritage Administration requested the National Institute of Cultural Heritage, the Office of Cultural Heritage, the private sector, the expert members, and the non-party, etc. to investigate and examine whether a private additional designation of the site of this case was made based on the results of the investigation and review conducted after deliberation by the Cultural Heritage Committee, and the second and third additional private designation was made. According to the above facts, each of the above private designation dispositions is judged to have been in compliance with all the private designation procedures prescribed in the Cultural Heritage Protection Act, and the mere fact that the factory site of this case was not inspected in advance is not unlawful. Accordingly, this part of the Plaintiff’s assertion is without merit.

B) Whether to succeed to defects

Where two or more administrative dispositions are continuously conducted, when the purpose of a separate legal effect between the preceding dispositions and the subsequent dispositions is to achieve different legal effects, the validity of the subsequent dispositions cannot be asserted on the ground of the defect in the preceding dispositions except where the defect in the preceding dispositions is grave and obvious and the invalidity of the preceding dispositions is null and void. However, even in this case, in a case where the absence of the power or binding force of the preceding dispositions results in cruelly exceeding the tolerance limit for admission to persons who are disadvantaged thereby, and the result is not predicted to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the constitutional ideology guaranteeing the right to a trial of the people (see, e.g., Supreme Court Decision 2012Du6964, Mar. 14, 2013).

In relation to the instant case, even if procedural defects, such as the Plaintiff’s assertion, exist in the dispositions for the second and third additional private designation, such procedural defects are deemed unlawful, each of the above private designation dispositions and the project approval of the instant case appears to be aimed at legal effect separate from each other. There is no circumstance to deem that the defect of each of the above private designation dispositions alleged by the Plaintiff is significant and apparent, and there is no reason to deem that the defect of each of the above private designation dispositions alleged by the Plaintiff constitutes grounds for invalidation as a matter of course. The evidence submitted by the Plaintiff alone is insufficient to recognize that the non-existence or binding power of each of the above private designation dispositions would be harsh

2) As to the second proposal by the Plaintiff

A) First of all, according to the above evidence as to who the operator of the instant project, the defendant's approval of the project was granted to the head of Songpa-gu as to the project operator on December 29, 2003, and both the public announcement of this case's public announcement of approval of the project as to the project for the restoration of Gwangju Pungtopy as of December 29, 2003. The intervenor head of Songpa-gu can recognize the fact that the operator of the instant project has performed the substantial business of acquisition of consultation, such as the public announcement of the compensation plan, notification and progress of consultation, and payment of compensation for the privately designated land from around 2003 to the present. Accordingly, according to the above recognition, it is reasonable

B) Next, we examine whether the intervenor head of Songpa-gu can be the implementer of the instant project that accepts State-designated cultural heritage pursuant to the Cultural Heritage Protection Act.

Article 4 of the Cultural Heritage Protection Act provides that the State as well as the local government shall establish and implement policies for the preservation, management, and utilization of cultural heritage, and that the State or the local government shall endeavor not to damage cultural heritage or its protection zone in the event of planning and implementation of various development projects. Article 42 of the same Act provides that not only the Administrator of the Cultural Heritage Administration but also the head of the local government may issue an administrative order, such as prohibiting or restricting certain acts or taking urgent measures necessary for the preservation of cultural heritage and its historical and cultural environment, and Article 34 of the same Act provides that the Administrator of the Cultural Heritage Administration may designate a local government as a management organization of the State-designated cultural heritage for the management of the State-designated cultural heritage. According to the above provisions, the local government may establish a plan for the preservation of State-designated cultural heritage as well as a City/Do-designated cultural heritage and may also issue various administrative orders for the preservation and management of cultural heritage, and that the head of the local government can only expropriate the State-designated cultural heritage or its designated cultural heritage or its protection zone, and thus, the State-designated is not justified.

C) The Plaintiff asserts that the instant project approval was unlawful in that the instant project approval was made inasmuch as the formal project operator of the instant project is inconsistent with the entity that actually carried out the project or the entity that acquired land ownership, thereby resulting in recognizing the implementation of title trust.

As seen earlier, the operator of the instant project shall be the head of Songpa-gu, the Intervenor, and the Plaintiff’s assertion that the ownership belongs to the Seoul Special Metropolitan City as a result of consultation on the instant site and the instant land reserved to the Intervenor is difficult to deem the actual project operator of the instant public announcement of project approval as the Intervenor, not the head of Songpa-gu, but the Intervenor Seoul Special Metropolitan City. Furthermore, due to the public announcement of the instant public announcement of project, the right to expropriate the instant land subject to expropriation would be vested in the head of Songpa-gu, the Intervenor, the project operator of the instant public announcement of project, under the Land Compensation Act. Accordingly, the Plaintiff’s assertion on this part, which is premised on the premise that the ownership of the instant land subject to expropriation naturally belongs to the Intervenor

D) In light of the fact that the budget size of the cultural and tourism field of Songpa-gu Seoul Metropolitan Government is less than KRW 9.3 billion, and that the intervenor Seoul Metropolitan Government would issue municipal bonds of KRW 75.0 billion and appropriate funds for the project expenses, the intervenor, who is the project operator of this case, asserts that the public announcement of the project of this case is unlawful since the intervenor, who is the project operator of this case, has no intent

If Eul added the purport of the entire argument in the statement Nos. 2 and 5, the head of Songpa-gu Office for the Intervenor is expected to spend the project cost of KRW 114 billion (including KRW 43.5 billion who completed compensation for the land in this case) and out of which compensation such as the site subject to expropriation in the future is anticipated to disburse KRW 70.5 billion. The above project cost is planned to be appropriated by the Seoul Special Metropolitan City Government for the state subsidy (70%) to be subsidized from the Intervenor Cultural Properties Office and the local expenses (30%) to be borne by the Intervenor himself/herself. Accordingly, the above project cost is already already reflected in the budget to be disbursed by the Intervenor Cultural Properties Office and Seoul Special Metropolitan City. According to the above facts, according to the above recognition, the project cost in this case seems to be able to be fully procured, and the above method is lawful in light of relevant laws and regulations, such as the Local Finance Act.

As to this, the Plaintiff asserts to the effect that project costs are unlawful since the Intervenor’s aforementioned project costs cannot be used for the purpose of land expropriation compensation under Article 83(1) of the Cultural Heritage Protection Act and Land Compensation Act, such as the Cultural Heritage Protection Act, the Subsidy Management Act (hereinafter “Subsidy Management Act”) and the Local Finance Act. However, according to the Cultural Heritage Protection Act, the State may subsidize all or part of the expenses for the management, repair, utilization, etc. of State-designated cultural heritage (Article 51), and the local government may bear or subsidize expenses incurred in the management, protection, repair, or utilization of State-designated cultural heritage (Article 52), which is located within its jurisdiction and not owned or managed by the local government (Article 9 of the Subsidy Management Act, Article 4 of the Enforcement Decree of the Local Finance Act, and Article 31 of the Local Finance Act) and Article 21 of the Enforcement Decree of the Local Finance Act provide that “State-designated cultural heritage repair and maintenance project” among the State-designated cultural heritage projects implemented by the local government shall be included in the aforementioned project’s calculation and maintenance of State-designated.

Therefore, the Intervenor cannot be deemed to have no intent or ability to conduct the project to the Intervenor head of Songpa-gu merely because the Intervenor head of Songpa-gu does not raise the project funds of this case in his own budget. Therefore, this part of the Plaintiff’

3) As to the third ground for appeal by the plaintiff

A) The Plaintiff asserts that the project approval of this case was unlawful on the ground that the project of this case is merely a part of the restoration and maintenance project of the entire storming area and thus, the Plaintiff’s project site of this case was not eligible for project approval, and that the public announcement of project approval of this case was made for the purpose of moving the factory of this case and saving the Plaintiff.

It is particularly true in light of the fact that the preservation, management, and utilization business of cultural heritage requires thorough exhaustion through excavation, investigation, and research prior to its restoration, etc., and that there is a need to consider various social requests since it entails the restriction on the property rights of the majority parties. In the case of the project in this case, the scale of the stormity itself is large, while the historical significance of the wind is not revealed in the past, it is practically impossible to carry out the restoration business at the same time for a short time as the downtown is rapidly proceeding in the site in the past, and it is not actually impossible to carry out the restoration business at the same time due to the wind that has not been revealed of the historical significance of the stormity in the past, and it is not unlawful to divide it into several regions in order, taking into account the structure and characteristics of the storm.

In addition, as seen earlier, the instant factory site and the instant temporary site owned by the Plaintiff were privately designated as a scenic spot, and the stopy master plan formulated by the head of Songpa-gu by the Intervenor was included in the content that the said site needs restoration and maintenance as a plastic wall zone. Accordingly, from 2003 to 2014, the Plaintiff sold the entire site of the instant temporary site and the land up to approximately 64% of the instant factory site from 2014 to 2014. After the consultation procedure for acquisition of the remainder of the factory site had been pending, negotiations for acquisition was concluded for acquisition of consultation due to the occurrence of differences in the compensation appraisal price, etc. while the consultation procedure for acquisition of the remaining factory site has been pending, the Intervenor’s head of Songpa-gu Office planned the rest of the factory site and applied for the approval of the instant project to the Defendant. In light of the circumstances leading up to the public announcement of the project approval of the instant site, the Plaintiff’s assertion on the instant land subject to expropriation cannot be deemed as expropriation for a specific landowner as alleged by the Plaintiff.

B) The Plaintiff asserts that the instant project was unlawful in violation of Articles 62 and 65 of the Land Compensation Act, which provide for advance compensation and lump sum compensation.

With respect to the assertion of violation of the principle of advance compensation, Article 62 of the Land Compensation Act provides that "A project operator shall pay the full amount of compensation to landowners and persons concerned before commencing construction works for the relevant public works." In this case, there is no evidence to acknowledge that the intervenor head of Songpa-gu has violated the principle of advance compensation as stipulated in the above provision, such as commencing construction works for the instant land subject to expropriation or taking any measures to implement the instant project, etc.

On the contrary, the argument that the principle of lump sum compensation is violated. Article 65 of the Land Compensation Act provides that “If there are several lands, etc. owned by the same person with the different timing of compensation in the same project area, the project operator shall pay compensation therefor at once when the landowner or person concerned requests compensation. In this case, there is no evidence to acknowledge that the plaintiff requested the intervenor Songpa-gu head to acquire the entire site of this case by consultation or compulsory expropriation, and rather, as the plaintiff could have known by the statement in the evidence No. 6 and No. 12, it was difficult to secure a budget to acquire the factory site of this case at once, as the plaintiff could have known by the statement in the evidence No. 6 and No. 12, the intervenor head of Songpa-gu and the plaintiff's interest who tried to operate the factory of this case at once coincide with each other, the method of acquiring consultation or expropriation of the factory site of this case cannot be deemed to violate the principle of compensation under the Land Compensation Act. Therefore, the plaintiff's assertion on this part is without merit.

4) As to Chapter 4 and Chapter 5 of the Plaintiff

A) The expropriation for public use is a compulsory acquisition of a specific property right of another person for a public project. As such, there is a need for the public project. As to whether it is necessary, the existence of public interest that may justify the infringement of the other party’s property right according to the expropriation must be proved as a result of the comparison and balancing of two interests. The burden of proof lies on the project operator (see Supreme Court Decision 2003Du7507, Nov. 10, 2005; 2003Du7507, Apr. 26, 2005). In addition, the project approval disposition under the Public Works Act is determined as a project to expropriate or use land, etc. for a public project, and it is not a simple confirmation but a form of formation. Thus, even if the project falls under a project that can expropriate or use the external form of land, the administrative body as well as the public and private interests of the person related to the disposition of the project approval should be fairly compared and compared to the public and private interests, and the mutual and private interests should be proportional (see, etc.).

In addition, Article 83(1) of the Cultural Heritage Protection Act provides that "the Administrator of the Cultural Heritage Administration or the head of a local government may expropriate or use land, buildings, standing trees, bamboo, and other structures located within designated cultural heritage or its protection zone pursuant to the Land Compensation Act, if necessary for the preservation and management of fire," and Article 4(8) [Attachment Table] of the Land Compensation Act provides that "the preservation and management of cultural heritage pursuant to the Cultural Heritage Protection Act" shall be one of the public projects that can acquire or use land, etc. pursuant to the Land Compensation Act. Thus, the defendant, who is the project approval authority of the project of this case, shall review whether the project of this case satisfies the requirements for land expropriation under the Cultural Heritage Protection Act, along with the requirements for public works

Based on the above legal principles, this paper examines whether the project of this case was conducted with legitimate comparison and bridge between relevant interests, such as the public interest and necessity of the project, public interest and private interest, etc.

B) First of all, the Plaintiff asserted to the effect that the instant site subject to expropriation did not have the eligibility for cultural heritage since it did not exist in the site subject to expropriation, and according to each of the above evidence, it is acknowledged that the instant site subject to expropriation was privately designated for the restoration to its original form and efficient management, and as long as the instant site subject to expropriation was designated as a private cultural heritage under the Cultural Heritage Protection Act, the instant site constitutes “designated cultural heritage” under Article 83(1) of the Cultural Heritage Protection Act, and thus, the eligibility subject to expropriation under Article 83(1) of the Cultural Heritage Protection Act is naturally recognized. Thus, the above argument is without merit without having to further examine.

However, the plaintiff did not know the existence of the plastic wall, and even if the plastic wall existed in the past, there is no possibility that the plastic wall existed in the site subject to the expropriation of this case. Thus, it is argued to the purport that the site subject to the expropriation of this case is not necessary for the execution of the project of this case. The issue of whether the plastic wall existed and whether the site subject to the expropriation of this case had a sexual wall in the past is necessary to expropriate the site subject to the expropriation of this case for the purpose of preserving and managing the storm, i.e., whether there exists the necessity of the project of this case among the plaintiff's assertion.

C) Next, it is natural that the following circumstances, i.e., (i) considering the overall purport of pleadings, i.e., the wall that protects king, etc. from external intrusion force, it is surrounded by the specific area due to soil or stone, etc., the remaining parts of the wall and the wall south/North Korea, which are the basis for making it clear that there are west walls, and (ii) considering the topographical map of 1915, it is possible to ascertain that there were 1 North Korea wall and 4 North Korea wall and its adjoining area were located in the 6th anniversary of the 1915 topographical map, it is found that there were 1 North Korea wall and its adjoining land lot number omitted, and that there were 2 North Korea wall and its adjoining area were found to exist in the 6th anniversary of the 6th anniversary of the 5th anniversary of the 1915 square meters of the 196th anniversary of the 196th anniversary of the 196th anniversary of the 1st anniversary of the 3th anniversary of the 3rd.

D) In full view of the following circumstances acknowledged by adding the whole purport of the pleadings to each of the evidence and evidence mentioned above as well as evidence set forth in Eul's evidence and evidence set forth in Eul's 4, 5, 14, 15, Eul's evidence set forth in Eul's 2, 10 through 36, Eul's 2, 9, and 15, it is reasonable to deem the necessity of the project of this case as well as the necessity of the project of this case since the project to restore and maintain it is recognized as a matter of course in light of the historical value of the storm, and the site of this case is the site of the storm, which is the site of the storm, or the site directly adjacent to the wall, and is necessary for the preservation and management of the storm, and the comparative balancing between public and private interests is also appropriate in principle of proportionality.

(1) Article 9 of the Constitution provides that the State shall endeavor to inherit and develop the traditional culture and to promote the national culture, thereby declaring the ideology of a cultural state, and at the same time, imposes an obligation to endeavor to inherit and develop the traditional culture and to promote the national culture. As such, the State is obligated to protect cultural heritage upon such constitutional request. Accordingly, the Cultural Heritage Protection Act provides that: (a) by specifying the State’s constitutional obligation under Article 1, the preservation of cultural heritage shall succeed to the national culture and ensure its utilization; (b) contribute to the enhancement of national culture; and (c) the preservation, management, and utilization of cultural heritage shall be based on the basic principle of the protection of cultural heritage under Article 3; and (d) the basic principle of the preservation, management, and utilization of cultural heritage shall be maintained in its original form. In addition, Article 4 provides that the State and local governments shall actively cooperate in policies for the preservation and management of cultural heritage or its protective facilities and protection zone and the historical and cultural environment (Article 4).

(2) Pungsung has been regarded as the most important among the relics that show the history of the Hansung Dynasty (BC 48-475) since it is the best king discovered in Korea as the king of the highest king of the Republic of Korea, and the meaning and the quantity of relics that are contained in the relics of other times. The same shall remain in the king, the main government office, and the village where the king facilities were located in the king, and the king, the main government office, and the Earsium were located in the 1980s, and it was assumed that the king, the 50s of the Republic of Korea and the 50s of the Republic of Korea had been found that the 50s of the 50s of the 1980s of the 198s of the 1980s of the 198s of the 50s of the 50s of the 50s of the 50s of the 190s of the 190s of the s of the s of the new soil.

At present, in the state where some sections of the Western wall and the total of 2.7 km of the Dong, South, and North wall are remaining, the area of the plastic wall is estimated to be about 3.5 km if it includes the plastic wall that seems lost in light of the form of horizontal distribution of the plastic wall, and the area of the remaining plastic wall is about 119,00 square meters and about 776,863 square meters in total. This is evaluated to be much larger than that of the domestic characteristics, racing's monthly characteristics, and that it is much larger than that of the flat.

From January 16, 1997 to June 24, 201, the National Cultural Heritage Research Institute conducted excavation and investigation 15 times more than 1,000, and as a result, there was a lot of relics and the number of times more than 1,000 water. Specifically, it was confirmed that the two Koreas were first East-gu, and the first ground type building site of the first white paper was discovered, and there was a lot of living containers, such as Cheongsung, slick, Silver, Silver, and Cheongdong Food, which were presumed to have been used for the production of Chinese products, such as Cheongsung, Silver, Silver, and Cheongdong Food, and so on.

(3) As a result of the excavation and investigation conducted from 202 to 2003 on part of the site of this case adjacent to the south of the site of this case, the excavation and investigation conducted after the excavation and investigation conducted from 2002 to 203, in the case of the third investigation conducted in the vicinity of the existing winding South wall in the site of this case, it is somewhat unreasonable to view the third investigation conducted in the vicinity of the existing wall of the site of this case as the upper wall of the building of this case, but it is reasonable to deem that the new soil and the sand floor, including river stones, were the lower part of the river that had passed at the time, and that the soil and the sand floor were the lower part of the building of the site of this case. In addition, it is reasonable to find out the above opinion that the above part of the building of the site of this case was the core part of the survey without any difference in view of the existence of the male wall connected with the upper part of the building of this case.

Ultimately, even according to the above excavation and investigation report, the site of this case was presumed to have been accumulated with the upper part by using the natural sediment layer, and the natural environment, etc. surrounding the long time, etc. was destroyed, or at least natural or artificial, it was presumed that the above site was used as a stove facility of the stormity. In light of the progress direction of the stoves section adjacent to the north of the site of this case, it is reasonable to presume that there was a stoves or tsunami facility like the site of this case. Even if the stoves or tsunami facility of this case did not pass through the site of this case, it is presumed that there was a stoves or tsunami facility of this case, in light of the whole form of the stormity, etc., even if the stoves or tsunami facility of this case did not pass through the site of this case, it is presumed that it was very close to the stoves or tsunami facility of this case.

(4) The Cultural Heritage Administration, the Intervenor, the Songpa-gu Seoul Special Metropolitan City, and the Songpa-gu Seoul Special Metropolitan City are expected to input approximately KRW 50.2 billion in total in the proportion of KRW 76,686 square meters in an area designated as a private site for the restoration and maintenance of the soil contamination (total area of KRW 379,984.3 square meters) from December 2003 to January 201, and complete purchase by inserting approximately KRW 56,686 square meters in the proportion of 7:3 square meters in the area designated as a private site for the restoration and maintenance of the soil contamination, and it is anticipated that approximately 1 trillion won will be invested in the compensation for the land, etc. in the Class II area, which is the core zone planned to purchase in the future. As such, the possibility that the project cost will increase significantly more than the expected increase in the purchase of land within the Class II area, the land price increase and the urban conditions need to be implemented early in the Class II area.

(5) The Plaintiff asserts to the effect that the project of this case, which is only a part of the project, is unlawful since the overall project significance, purpose, spatial and geographical scope, and specific project contents are not determined. However, as acknowledged earlier, the Administrator of the Cultural Heritage Administration established a basic plan for the preservation, management and utilization of the soil contamination from October 2002 to prepare for the excavation and restoration, and established a plan for the conservation and utilization of the soil contamination in six zones in consideration of the structure of the soil contamination and regional characteristics of April 2009, and established a plan for the conservation and utilization in each region. On January 2015, the above basic plan for the implementation of the project of this case was established clearly based on the above basic plan, taking into account the purchase and excavation status of the land, and the basic plan for the sustainable implementation of the project of this case was formulated on July 1, 2014, which is not formulated for the 10th anniversary of the above basic plan for the excavation and inspection of the soil contamination (2nd of the building site) and the housing site development plan of this case.

(6) In light of the guidelines for the establishment and implementation of a private maintenance plan, which is established by the Cultural Heritage Protection Act, the established rules of the Cultural Heritage Administration, and the provisions for filing an application for the entry of UNESCO World Heritage Heritage, the Plaintiff asserts that the instant project cannot be a public work under the Cultural Heritage Protection Act, because it is merely a creation of an artificial cultural environment, not an preservation and management of cultural heritage, to restore spaculatory walls and guides claimed by the Defendant and the Intervenor.

The principle of the maintenance of the original form under the Cultural Heritage Protection Act is the basic principle of the protection of cultural heritage that the cultural heritage should be preserved so that its original form can be maintained. It is interpreted that the restoration, maintenance, and utilization of the cultural heritage itself is not prohibited, but it is necessary to restore the original form of the cultural heritage through thorough research and review conducted by experts in order to restore and maintain its original form. If the cultural heritage is considerably damaged and its original form is not verified, it is presumed that the presumption and restoration through investigation and excavation activities and research conducted based on its result are naturally included in the category of the preservation and management of the cultural heritage. As seen earlier, since the existence of a plastic wall is sufficiently presumed, the purpose of the instant project is to restore and maintain the original form of the cultural heritage close to its original form, and therefore, it conforms with the above principle of the maintenance of the original form. The Plaintiff’s above assertion is not acceptable if it is not permitted to use the cultural heritage in its original form because it is destroyed or lost or its original form is not permissible.

(7) In addition, the plaintiff asserts that the project of this case is merely an excavation and research project to secure basic data on the plastic walls, and that the purpose of the project can be sufficiently achieved not only by compulsory expropriation but also by public use.

However, as seen earlier, the project of this case is aimed at restoring, maintaining and utilizing the scenicity, and the excavation investigation constitutes a basic business that must be prior to the restoration and maintenance of the scenicity. Thus, the above assertion on the premise that the project of this case is a business that only aims at the excavation investigation is without merit.

(8) It is recognized that the Intervenor used the instant site acquired through consultation from the Plaintiff as a public parking lot, etc. However, with respect to the instant site, the Intervenor’s plan was formulated to restore a sexual wall after discovering, investigating, restoring, and maintaining the plastic wall restoration district (II-1 district), which includes the instant site. As such, the instant site is being used as a public parking lot because it is temporarily being carried out in a situation where the purchase and excavation investigation of the site for the instant site is not yet carried out, the need for the instant project concerning the instant site subject to expropriation cannot be denied on the ground of the foregoing circumstances.

(9) The Plaintiff asserts that the instant site subject to expropriation is not necessary for the implementation of the instant project or the project for the restoration and maintenance of the entire soil contamination, inasmuch as the partial restoration and maintenance of the existing area of the sexual wall are also meaningful businesses in itself, it is not possible to implement the instant project only in cases where the entire area of the sexual wall can be completely restored.

(10) The site of this case was partially designated as a private individual until the time of the initial private designation, the first and second additional private designation. Accordingly, the Plaintiff recognized that the rest of the site excluded from the private designation was an early white water system by the academic community, and privately, it is impossible for the Plaintiff to utilize the remaining land through the site center. Even if the compensation of the government’s budget after private designation is somewhat late, it seems inevitable to designate the entire site of this case as a private site, and even if the compensation is made annually over several years due to securing budget, it is necessary to secure the cost of the relocation of the factory and effectively designate the factory, and it is difficult to consider that it was an additional private designation for the remaining site for 3rd years by actively reflecting such opinion, and then, it is difficult to view the Plaintiff to have agreed on the maintenance and improvement project of the public interest to the extent that it would have been 64% of the site of this case’s relocation of the site of this case.

(11) Of course, the argument between the Defendant and the Intervenor does not coincide accurately with the boundary of the instant factory site, and therefore, the need for expropriation in respect of part of the instant site subject to expropriation may not be significant in light of the instant business purpose, namely restoration, maintenance, and utilization of wind and water supply. However, in light of the form of wind supply, etc. as seen earlier, the part of the instant site subject to expropriation, which is less in need of expropriation, is going toward the direction of South and North Korea over a variety of land, and is only narrow and narrow, and thus, it cannot be viewed as the Plaintiff’s profit because it does not increase its utilization as the remaining land, and thus, it is difficult to view that the entire site subject to expropriation in the instant case is unlawful to consider it as the planned site for the project.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions. Thus, the appeal of the defendant and the intervenor is accepted in entirety, and the judgment of the court of first instance is revoked and the plaintiff'

[Attachment Omission]

The judge’s seat (Presiding Judge) Ma-hee Park Jong-hee

(1) On July 5, 2005, land (number 4 omitted), (number 6 omitted), old (number 7 omitted), (number 8 omitted), (number 9 omitted), (number 9 omitted), (number 10 omitted), and (number 11 omitted) was combined into a historic site 18,226 square meters, which is located on the old (number 4 omitted), (number 5 omitted), and (hereinafter in the instant case, as shown on the basis of the old parcel number before the annexation.

2) At present, it also includes the same purpose of the current medium, middle and high school, and authorized history textbooks, such as “sporadity is in opinion that it constitutes a sporadity which was an initial sporadity,” “sporadity which was the first water of sporadics is written on the sporadity and sporadity of spodity,” “spodity is likely to be a spodity of spodity of spodics,” “spodity is presumed to be an initial spodity of spodics,” and “spodity was 490 years after spodics.”