Whether a landowner may immediately file a claim against a project operator for compensation for losses due to a decrease in the price of remaining land pursuant to Article 73 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects without going through the adjudication procedure prescribed in Articles 34 and 50 of the same Act (negative), and whether the same applies to cases where the land to be expropriated was subjected to the adjudication procedure (affirmative)

Articles 34, 50, 61, 73, 83, 84, and 85 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Supreme Court Decision 2006Du19495 Decided July 10, 2008

Plaintiff (Law Firm Jinsu, Attorney Lee Ha-sil, Counsel for plaintiff-appellant)

Korea Rail Network Authority (Law Firm Korean Peninsula, Attorney Lee Hy-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2010Nu45998 decided August 18, 2011

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 73 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 the remaining land is reduced or other losses are incurred due to the acquisition or use of part of a group of land belonging to the same owner, or if the construction of a passage, ditch, fence, etc. or other construction work is necessary on the remaining land, the project operator may purchase the remaining land, as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs: Provided, That in cases where the sum of the reduced price of the remaining land and the construction expenses on the remaining land is larger than the price of the remaining land, the project operator may purchase the remaining land. In full view of the provisions, legislative purport, etc. of Articles 73 and 74, 50, 61, and 83 through 85, etc. of the Public Works Act, it shall be deemed that the landowner is not entitled to compensation for damages due to a decrease in the price of the remaining land from the project operator under Article 73 of the Public Works Act without following the adjudication procedure under Articles 20 through 850.

2. According to the reasoning of the lower judgment, the lower court deemed that the remaining land owned by the Plaintiff constitutes the remaining land as prescribed by Article 73(a) of the Public Works Act, and rejected the Plaintiff’s claim for compensation for damages due to the price decrease in the remaining land in the Seoul Jung-gu, Seoul ( Address 2 omitted) and the Seoul Jung-gu, Seoul, which is the land to be expropriated, without going through any adjudication as to the claim for compensation for damages due to the purchase of the remaining land or the price decrease in the remaining land, on the ground that the Plaintiff’s claim for compensation for damages due to the price decrease in the remaining land in the instant case was without going through the adjudication procedure, and thus, dismissed the claim on compensation for damages due to the price decrease in the remaining land.

3. The facts acknowledged by the court of first instance, as cited by the court below, and the evidence duly admitted, revealed that the remaining land was excluded from the land expropriation process of the land necessary for the instant railroad construction project at the Plaintiff’s request and thus was not subject to the adjudication process, and that the Plaintiff did not claim a purchase claim for the remaining land of this case or a compensation for losses due to price decrease in the course of the adjudication process. Examining these facts and the reasoning of the judgment below in light of the aforementioned legal principles, the above judgment below did not err by misapprehending the legal principles on the procedure for compensating the remaining land and the remaining land as stipulated in the Public Works Act

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)