[1] The method of assessing the compensation for land subject to restrictions in public law

[2] In a case where the head of the competent Gu has determined the expropriation compensation in accordance with the appraisal result evaluated as a green area for Gap's land which was expropriated for a park creation project, the case holding that the court below erred by misapprehending the legal principles on the ground that the determination of urban planning for park construction is individual planning restrictions, and that the designation and alteration of the above land as a green area is directly aimed at the installation of a park, since the designation and alteration of the above land was made for the purpose of directly establishing a park, which is an urban planning facility, and that the public law restrictions following the designation and alteration of

[1] Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for

[1] Supreme Court Decision 91Nu4324 delivered on March 13, 1992 (Gong1992, 1317) Supreme Court Decision 2006Du11507 delivered on July 12, 2007 (Gong2007Ha, 1279)

Plaintiff (Law Firm Lee non-EL et al., Counsel for the plaintiff-appellant)

Bupyeong-gu Incheon Metropolitan City (Attorney Fixed-ro, Counsel for defendant-appellant)

Incheon Metropolitan City

Seoul High Court Decision 2011Nu10548 decided December 8, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, the plaintiff alleged that the land owned by the park development project of this case should be evaluated as being excluded from the restrictions associated with the designation of green belt zones since the designation of green belt zones for the above park development project is for the above park development project. The court below rejected the plaintiff's assertion on the following grounds: (a) comprehensively based on the adopted evidence, the court below acknowledged the facts and history of urban planning facilities on the land of this case, including the progress and history of the park development project, the progress of the implementation of the park development project, the current status of the land of this case and neighboring land, the ruling of expropriation, and the appraisal results in the first instance court; (b) the restriction on the public law of the land of this case, regardless of the above park development project, constitutes a general limitation on the land in the park zone, and it cannot be deemed that it was directly for the

① On January 8, 194, the land located in Bupyeong-gu Incheon Metropolitan City was first determined as the Incheon Metropolitan City City Urban Planning Park on January 8, 194, pursuant to subparagraph 13 of the General Public Notice of the Prime Minister, ② A park area determined by the above General Self-Announcement was reflected as it was in Article 202 of the Public Notice of Construction on January 4, 1963, and was maintained without a change in the park area, and only after the change in the name, number, and area of the park was made, and there was only a change in the name, number, and area of the park, and ③ the owners of land, etc. located in the Gyeongsan-dong, Incheon Metropolitan City City City Council around October 1992, the land of this case was maintained as the park area, which was first determined as the park area around 194, and was set up as the restricted area. In light of the above, the land of this case was subject to a general restriction before the development project, regardless of whether it is a green area under public law.

2. However, the lower court’s determination is difficult to accept for the following reasons.

Article 23(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects provides that “Any land subject to restrictions in the public law shall be assessed according to the conditions under which the restrictions in the public law are placed: Provided, That where the restrictions in the public law directly aim at the implementation of the relevant public project, the said restrictions shall be assessed on the basis of the conditions under which there are no restrictions in the public law.” Therefore, when calculating the amount of compensation for land subject to restrictions in the public law, where the restrictions in the public law per se are general planning restrictions that achieve the objectives of restrictions, such as designation or change of specific use areas, districts, zones, or zones under the former Urban Planning Act, and which are not directly related to the specific urban planning project, such restrictions shall be assessed as they are, however, if the designation or change of specific use areas, zones, or zones is for the implementation of a specific public project, such restrictions shall be assessed on the basis of the conditions under which the restrictions are not imposed, such as the designation or change of specific use areas, zones, or zones (see Supreme Court Decisions 2019Nu3414.27.

Therefore, even if the land of this case, including the land of this case, was designated as a residential area on October 19, 1965 and has been continuously maintained the urban planning decision on the installation of the above park after being determined as the Incheon City City Planning Park on January 8, 194 by the public notice of the General Self-Governing Province on January 8, 194, as recognized by the court below, it is sufficiently known that the designation and alteration to such green area is directly aimed at the installation of the above park, and even if the land of this case was designated and altered as a green area among the special-purpose areas under the former Urban Planning Act because it was within the above zone of the urban planning park, it is nothing more than the above individual planning restriction as seen above, and even if the land of this case was designated and altered as a green area among the special-purpose areas under the former Urban Planning Act, in light of the history and status of the land of this case and the fact that the land of this case was designated as a residential area and returned to a green area on the construction of the park.

Nevertheless, the lower court, based on its reasoning, determined that restrictions imposed on the determination, etc. of the urban planning park on the instant land constitute a general planning restriction, regardless of the instant park creation project. In so doing, it is obvious that the lower court erred by misapprehending the legal doctrine on the appraisal of land subject to restrictions in public law, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)