Plaintiff 1 and one other (Attorney Jeong-young, Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation (Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

June 28, 2013

Suwon District Court Decision 2012Guhap875 Decided October 24, 2012

1. The part of the first instance judgment against the plaintiffs shall be revoked.

The defendant shall pay to the plaintiff 1 5% interest per annum from August 18, 2011 to October 24, 2012; 20% interest per annum from the next day to the day of full payment; 50,790,900 interest per annum from September 13, 201 to October 24, 201 to the day of full payment; 50% interest per annum from the next day to the day of full payment; and 20% interest per annum from the next day to the day of full payment.

2. The defendant's incidental appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 1 of this Article, Paragraph 1 of this Article, Paragraph 1-A of this Article, and Paragraph 3 of this Article can be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 1 5% a year from August 18, 2011 to the date the judgment of the court of first instance is rendered; 20% a year from the next day to the date of complete payment; and 122,075,600 won a year from the next day to the date of complete payment; 5% a year from September 13, 201 to the date of full payment to the date of full payment; and 20% a year from the next day to the date of full payment to the date of full payment.

2. Purport of appeal

The text of paragraph (1) is as follows.

3. Purport of incidental appeal;

The part against the defendant in the judgment of the first instance against the plaintiffs is revoked, and the plaintiffs' claim against the revocation part is dismissed.

1. Details of ruling;

The court's explanation on this part is identical to the entry of the reasoning of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Determination as to the plaintiffs' claims

A. The plaintiffs' assertion

(1) The plaintiffs' common assertion

Since the roads of urban planning facilities are expected to be opened in the vicinity of 5, 6, and 10 land, development gains accrued therefrom shall be reflected in each of the above land.

(2) Plaintiff 1’s assertion

4 Since the land category was changed to a road because it was incorporated into the head-surk road business, and the land category was not compensated, it should be assessed by considering the land as "the answer," which is the situation of use at the time of incorporation into the previous public service business.

(3) Plaintiff clan's assertion

8. Among land 8.9, the current road is merely 22 square meters, and the remaining 149 square meters shall be assessed according to the land category except for the current road.

B. Determination

(1) Determination of the plaintiffs' common assertion

Article 67(2) of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that “If the price of land, etc. has changed due to the public work in case of calculating the amount of compensation, it shall not be considered in the event of a change in the price of the land, etc. caused by the public work.” In calculating the amount of compensation for losses caused by the expropriation of land, a reasonable price shall be determined on the basis of the price at the time of the adjudication of expropriation without considering the change in price due to the approval and public notice of a plan directly used for the public work in question. However, the development gains arising from the implementation of another project unrelated to the public work in question shall be assessed at the price not excluded (see Supreme Court Decision 91Nu774 delivered on February 11, 192, 200). In addition, Article 67(2) of the Public Works Act does not vary depending on whether the development gains have occurred after the public work approval approval is granted, and even if the public work is not subject to such restriction after the public work in question.

In light of the above legal principles, the Gyeonggi-do governor, with respect to the Road Packing Corporation, which is the first public notice of the project approval of the project of this case, can recognize the facts that the public notice of this case was issued on March 31, 2003 as the public notice of Gyeonggi-do on May 1, 2006. Since the land of this case 5, 6, 10 is located near the road zone where the above Maambam-Masan Corporation is located and the development gains unrelated to the public project of this case occur, such circumstances should be reflected even if the first public notice of the project approval of this case is prior to the public notice of the road zone (change) approval of the project of this case. Thus, this part of the plaintiffs' assertion is without merit, and there is no reason to acknowledge that the above public service business of this case is identical to the above public service of this case.

(2) Determination on Plaintiff 1’s assertion

Article 25(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Enforcement Rule of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects") provides that the unclaimed land which was previously implemented and the compensation has not been paid shall be assessed by considering the current status of use at the time of incorporation into the previous public project, but where the current status of use at the time of incorporation into the previous public project cannot be known, the land category

However, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 5 and 6, and Eul evidence Nos. 10, the Army ○○○○○○○○ unit entered the land to be incorporated into the road on November 20, 1982 and requested the head of Sincheon-gun to report the partition of the land. ② The protocol attached to the division report which was requested by the Army ○○○○○○○○○○ unit to report the partition of the land was entered into the Dongpo-gun, Masan-ri (number 1 omitted) and the 3,590 square meters of Sincheon-gun, Masan-ri (number 1 omitted) and the 115 square meters of Sincheon-ri (number 2 omitted), and the fact that the land category was changed to the name of the land after December 4, 198.

In light of the above legal provisions, although the land was incorporated into the road before and after the 1982 request for a report on subdivision of the land by the Army ○○○○ Military unit in Gyeonggi-do, the land was not compensated for it. Therefore, it shall be deemed that the land falls under the unclaimed land under Article 25(1) of the Enforcement Rule of the Public Works Act, and therefore, the allegation by Plaintiff 1 on this part is well-grounded.

(3) Judgment on the plaintiff clan's assertion

In full view of the images of the evidence No. 12, the result of the commission of surveying and appraisal to Nonparty 1 by the first instance court (hereinafter “survey appraiser”) and the purport of the entire pleadings, ① a survey appraiser is an open space with no packaging of 94 square meters out of 171 square meters in total of 8,9 land. 55 square meters is a concrete package, and 22 square meters are a concrete package. ② A survey appraiser presented the appraisal opinion that a road is a concrete package, and ② even based on satellite photographs of the land No. 8, 9, the fact that a road is divided into 5 square meters and a concrete package of 171 square meters out of total land No. 8,9, and 22 square meters, which is a road packed with concrete among 171 square meters, may be recognized. The statement of evidence No. 11 alone is insufficient to reverse the survey appraiser.

In light of these facts, this part of the Plaintiff’s clan is just 22m2 square meters among the 8,90m2 in total land and 171m2.

(c) Fair compensation for losses;

(4) In full view of the purport of the entire pleadings as to the appraisal result of the appraisal on the non-party 2 of the first instance court, the appraisal result of the appraisal on the non-party 1’s entrustment of appraisal on the non-party 1 and the appraisal result of the above appraiser 1’s entrustment of appraisal on the non-party 2 (hereinafter “court appraiser”) and the overall purport of the pleadings, the court appraiser divided the land of this case into 607 square meters (number 3 omitted), Masan-ri (number 1, 3 omitted), Masan-ri (number 4 omitted), Masan-ri (number 2, 625 square meters) and 1,625 square meters (number 4 omitted), Masan-ri (number 5 omitted), 8,000 square meters (number 5 omitted), 9,500 square meters (number 6 omitted), 9,500 square meters of land into individual land standards, 4,000 square meters of land, and 3,000 square meters of land.

In addition to 1,00 square meters in the current status of land category (1 omitted) of the Plaintiff’s land subject to expropriation in the main sentence of 30,000 square meters, 221, 459, 101, 483, 200 miscellaneous land (30784,900 miscellaneous land), 2459, 200 miscellaneous land, 111, 115, 585, 60 (207 42,208, 408, 4748, 205, 4748, 205, 308, 205, 4748, 205, 307, 4740, 305, 207, 305,47, 305,47, 305,47, 305,47, 305,47, 305,47, 307, 147,437,47, 3044

On the other hand, in assessing the legitimate compensation for losses, the judgment did not reflect the development gains arising from the openings of the road for urban planning facilities between Maamamamam-Masan in assessing the land 5,6,10, and the land 4 was assessed as a road which is not a non-unclaimed site. The assessment was based on the premise that the current status of 171 square meters in total of 8,9 and 171 square meters is 74 square meters. However, the court’s assessment was based on the premise that there was no such errors, as well as that there was no such errors, and that the court’s assessment was more appropriate assessment and assessment of the compensation for each land of this case, such as presenting the basis for further calculation

Therefore, the defendant is obligated to pay to the plaintiff 1 64,69,400 won (=737,034,400 won - 672,35,000 won - 672,335,000 won) and to pay damages for delay at the rate of 5% per annum prescribed by the Civil Act from August 18, 2011 to October 24, 2012, which is the day following the date of first instance judgment, which is the day of first instance judgment; 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment; 12,075,600 won per annum from the day after the day of second instance judgment to the day of full payment; 12,075,600 won per annum from the day after the day of second instance judgment to the day of 20% per annum 215,214,201.

3. Conclusion

Therefore, the appeal by the plaintiffs is with merit, and the part against the plaintiffs in the judgment of the court of first instance is revoked, and 5% per annum from August 18, 201 to October 24, 2012, and 20% per annum from the next day to the day of full payment, 50,790,900 won per annum from September 13, 201 to October 24, 201, and 20% per annum from the next day to the day of full payment, 5% per annum from September 24, 201 to the day of full payment, and 5% per annum from the next day to October 24, 2012, and 20% per annum from the next day to the day of full payment. The defendant's incidental appeal is dismissed. It is so decided as per Disposition.

Judges Lee Jae-won (Presiding Judge) et al.