(영문) 대전지방법원 2016.10.13. 선고 2015구합106089 판결

2. Preliminary Defendant shall pay to the Plaintiff 235,06 won with 5% interest per annum from January 13, 2016 to October 13, 2016, and 15% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims against the conjunctive defendant are dismissed.

4. Of the costs of lawsuit, the costs incurred between the Plaintiff and the primary Defendant are borne by the Plaintiff, and the remainder, excluding the costs of appraisal, among the costs incurred between the Plaintiff and the primary Defendant, by the conjunctive Defendant.

5. Paragraph 2 can be provisionally executed.

Purport of claim

Claim against the primary defendant: The Minister of Trade, Industry and Energy shall revoke the part concerning each of the lands listed in the attached Table among the approval dispositions of the execution plan for electric power resource development projects publicly notified by the Minister of Trade, Industry and Energy on December 4,

The purport of the claim against the conjunctive defendant: The Korea Electric Power Corporation shall pay to the plaintiff 20 million won with 5% interest per annum from January 12, 2016 to the date of the instant judgment, and 15% interest per annum from the next day to the date of full payment.

Reasons

1. Basic facts and details of the ruling;

A. On May 31, 200, the Plaintiff completed the registration of ownership transfer with respect to B forest No. 34,512 square meters in Chungcheongbuk-gun.

B. On June 24, 2014, 201, 200 square meters of land B in Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-gu, Chungcheongnam-do, B (hereinafter referred to as “land prior to subdivision”) were divided and changed in the size on several occasions, following the change in the name of the administrative district, and the change in the name of the change in the administrative district.

C. Meanwhile, prior to the Plaintiff’s acquisition of ownership of the land before subdivision, the Defendant Korea Electric Power Corporation has used part of the land before subdivision (hereinafter “site such as the site where transmission towers are laid underground”) as the place where transmission towers are laid underground and the place where transmission lines are set up.

D. On April 2, 2012, the Plaintiff filed a lawsuit against the Defendant Korea Electric Power Corporation to the effect that the Plaintiff removed the transmission tower and the transmission line located on the ground of the part of the land prior to the division (total area of 6,600 meters), deliver the place of the transmission tower and the part of the transmission line laid underground, and return the unjust enrichment equivalent to the rent for the failure to arrange the transmission tower and the transmission line, which was rendered a favorable judgment on October 11, 2013, and the said judgment became final and conclusive around that time.

1. The Defendant Korea Electric Power Corporation removes the transmission towers, underground lines, and power transmission lines located on the site, including the site laid underground for transmission towers, and delivers the said land.2. Defendant Korea Electric Power Corporation pays to the Plaintiff the amount calculated at the rate of KRW 46,180 per month from July 2, 2012 to the date on which the Plaintiff loses the Plaintiff’s ownership of the land set forth in the said paragraph (1) or the date on which the Defendant Electric Power Corporation’s possession is terminated.3. The remaining Plaintiff’s claim is dismissed.

E. Around February 2014, Defendant Korea Electric Power Corporation applied for the approval of the implementation plan for electric power resource development business regarding “C Electric Power Transmission Line Title” (hereinafter “instant business”). On November 28, 2014, the Minister of Trade, Industry and Energy approved the instant implementation plan on November 28, 2014, and some of the land before subdivision was included in the land subject to the instant project.

F. On December 4, 2014, the Minister of Trade, Industry and Energy publicly announced the approval of the instant project implementation plan in the Official Gazette by the Minister of Trade, Industry and Energy.

G. Meanwhile, on August 18, 2015, the land before subdivision was divided into a square spot of 33,009 meters of woodland B in Seocho-gu and E 100 meters of forest land (attached Form No. 1).

H. The Defendant Korea Electric Power Corporation acquired the ownership of divided superficies of between 7 and 67 meters on the ground of 3,707m (in total of the lands listed in paragraph (2) of the attached Table; hereinafter referred to as “instant land”) out of 33,09m of 3,709m of Cheongju-si B forest and 33,009m from the Plaintiff, Cheongju-si, and the land listed in paragraph (1) of the attached Table. However, the agreement between the Plaintiff was not concluded, and the Central Land Expropriation Committee applied for

I. On November 19, 2015, the Central Land Tribunal rendered an adjudication on the application for the above acceptance ruling (hereinafter “instant acceptance ruling”) with the following contents:

1. The Korea Electric Power Corporation (Defendant Korea Electric Power Corporation) shall expropriate the land specified in paragraph (1) of the attached Table for the instant project, use the 7 to 67m above the land specified in paragraph (2) of the attached Table for the instant project, and use the 29,375,750m above the land specified in paragraph (2) of the attached Table (section 29,375,750 (i.e., compensation 2,500 for the expropriation of the land listed in paragraph (1) of the attached Table) and the compensation 26,875,750 for the use of the land listed in paragraph (2) of the attached Table.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 6, Eul evidence 1 and 2 (including branch numbers), the purport of the whole pleadings

2. Determination as to the legitimacy of the litigation against the primary defendant against the Minister of Trade, Industry and Energy

A. The plaintiff's assertion

Defendant Korea Electric Power Corporation may carry out the instant project by incorporating the instant land that is not the instant land, even if somewhat costed, and thus, it is unlawful for the Minister of Trade, Industry and Energy to approve the instant project implementation plan including the instant land as the project object.

(b) Defendant Minister of Trade, Industry and Energy’s defense

The plaintiff's lawsuit against the defendant against the Minister of Trade, Industry and Energy is unlawful because it has been filed after the period of lawsuit expires.

C. Determination

1) Except as otherwise provided for in the proviso of Article 20(1) of the Administrative Litigation Act, a litigation seeking revocation shall be instituted within 90 days from the date on which the administrative agency becomes aware of the disposition, etc. (main sentence of Article 20(1) of the Administrative Litigation Act), and whether the period for filing a lawsuit is observed is the matter of ex officio investigation by the court as a litigation requirement. On the other hand, a person who has an interest in an administrative disposition based on the public notice becomes aware of the administrative disposition on the date on which the public notice takes effect, regardless of whether the person was actually aware of the fact that the public notice was made (see, e.g., Supreme Court Decision 2006Du3847, Apr. 14, 206). In cases of a public notice document to inform the general public of certain matters, such as

(See Supreme Court Decision 2010Du2623 Decided March 14, 2013, etc.)

2) On December 4, 2014, the fact that the approval of the instant project implementation plan was announced in the Official Gazette on December 4, 2014 is as seen earlier. The fact that the instant lawsuit was brought on December 3, 2015, which was 90 days after the date on which the said notice became effective, is apparent in the record, and thus, the Plaintiff’s lawsuit against the Minister of Trade, Industry and Energy was instituted after the lapse of the filing period, and is unlawful.

3. Determination on the claim against the conjunctive defendant

A. The plaintiff's assertion

Since the compensation determined in the instant expropriation ruling is too small, Defendant Korea Electric Power Corporation is obliged to increase the compensation for the expropriation or use of the instant land to the Plaintiff, and the Plaintiff seeks payment of KRW 20,000,100 as part of the compensation claim and damages for delay.

B. Determination

1) In a lawsuit involving an increase or decrease in land expropriation (use), where both the appraisal by each appraisal agency and the appraisal by each appraisal agency selected by the court do not have any unlawful reason in the appraisal method, and in view of the remaining price assessment factors except for the individual factors, in a case where the appraisal results coincide with each other, but only in the comparison of individual factors cause a difference in the appraisal results, insofar as there is no evidence to prove any error in either of the appraisal, it is recognized as a justifiable compensation value by cooking and selecting any one of the appraisal, insofar as it does not go against the logical and empirical rules (see, e.g., Supreme Court Decision 2002Du4679, Jan. 28, 2005).

2) In light of the above legal principles, according to the evidence mentioned above, the result of the appraisal commission and the purport of the entire pleadings with respect to the appraiserF of this case, the court appraiser of this case selected a comparison standard with the land of this case as of November 19, 2015, which is similar to the land of this case and its specific use area, utilization status, restrictions under the public law and surrounding environment, etc., and evaluated the land of this case, it can be acknowledged that the market price of this case is 2,520,000 won in the attached list 27,090,756 won in the attached list 27,000 won in the land price of this case as of the land of this case as of November 19, 2015, which is the date of the expropriation ruling of this case. The appraisal is deemed to have been properly conducted in accordance with the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, the public notice of Values and Appraisal of Real Estate Act, and the normal price of similar neighboring land.

Therefore, this court should recognize the fair compensation amount of the land of this case according to the result of the appraisal by the court appraiser.

3) Therefore, the Defendant Korea Electric Power Corporation has a duty to claim against the Plaintiff on January 13, 2016, regarding the existence and scope of the obligation to implement the instant land (i.e., compensation of KRW 2,520,00 for the land expropriation indicated in attached Table No. 1 + compensation of KRW 27,090,756 for the land use listed in attached Table No. 29,375,756) and damages for delay calculated annually from the date following the date of expropriation to October 13, 2016, the amount of which is 29,375,750 won (=29,610,756 won - 29,75,750 won - 29,75,750 won) and to pay damages for delay at the rate of KRW 5% per annum from the day following the sentencing date of this case until October 13, 2016, which is the date of full payment.

4. Conclusion

Therefore, the plaintiff's main defendant and the Minister of Trade, Industry and Energy's lawsuit are dismissed. The plaintiff's preliminary claim is justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.