[1] The meaning of "permission, etc. under the relevant Acts and subordinate statutes" under Article 45 subparagraph 2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, which is the business requirements subject to compensation for business losses, and whether a building engaged in a business may be excluded from the scope of compensation for losses on the ground that it is an unauthorized building

[2] In a case where, even though there were somewhat procedural errors in the process of a business license, the permission, etc. is not automatically invalidated or revoked, whether it constitutes “permission, etc. under the relevant Acts and subordinate statutes” under Article 45 Subparag. 2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (affirmative)

[3] The case holding that even if there was a somewhat procedural error in the registration of the real estate brokerage business, so long as the repair of the registration is not void or revoked automatically, it constitutes a business subject to compensation for losses under Article 45 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, even if the report on business closure was

[1] Considering the legislative purpose of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and the legislative purpose of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, but the right of business is the property right that is the object of compensation for losses, because the illegal business itself has no value to protect, permission, etc. under related Acts and subordinate statutes, permission, etc. of the above provision refers to permission, etc. necessary to satisfy the legality of the business itself, and it cannot be deemed that a place of business that is not directly related to the business is a legitimate building. Thus, the business cannot be excluded from the object of compensation for losses solely on the ground that the building in which

[2] If, even if there were somewhat procedural errors in the process of business permission, etc., the permission, etc. was not automatically invalidated or revoked, such permission, etc. constitutes “permission, etc. under the relevant Acts and subordinate statutes” under Article 45 Subparag. 2 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects.

[3] The case holding that even if there was a somewhat procedural error in the registration of real estate brokerage business, so long as the repair of the registration is not void or revoked automatically, it constitutes a business subject to compensation for losses under Article 45 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, even if the report on business closure was made before

[1] Article 77 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 45 subparagraph 2 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Article 77 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 45 subparagraph 2 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [3] Article 77 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 45 of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance No. 126 of the Ministry of Construction and Transportation of April 12, 2007)

Plaintiff

Korea Land Corporation (Attorney Cor-soo, Counsel for defendant-appellant)

Suwon District Court Decision 2005Guhap2327 decided July 4, 2006

March 16, 2007

1. Of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 2,348,175 to the plaintiff and its related costs in excess of 5% per annum from October 18, 2005 to March 16, 2007, and 20% per annum from the next day to the day of complete payment, shall be revoked, and the plaintiff's claim corresponding to the revocation part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be four minutes, which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 10 million won with 20% interest per annum from October 18, 2005 to the day of complete payment.

2. Purport of appeal

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

1. Details of the confinement of this case

The reasoning of this part is as stated in the reasoning of the judgment of the court of first instance. Thus, this part of the court's reasoning is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The parties' assertion

In regard to the plaintiff's assertion that the business of this case should be compensated for losses, the defendant asserts that the business of this case is not a legitimate business subject to compensation, since the plaintiff's business of this case is conducted in an unauthorized building, the plaintiff's procedure for registration of real estate brokerage is unlawful, and the plaintiff filed a report of business closure prior to the date of approval and public notice

B. Relevant statutes

Attached Form is as shown in the attached Form.

(c) Markets:

(1) Whether the instant business is subject to compensation for losses

(A) First, considering the purport of the Act on the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Public Works (hereinafter “Public Works Act”) aimed at promoting the promotion of public welfare and the appropriate protection of property rights with respect to the assertion of an unauthorized building, and the purpose of the business right, in principle, is the property right that is the object of compensation for losses, but its illegal business itself is not worth protecting, and thus, it appears that Article 45 Subparag. 2 of the Enforcement Rule of the Public Works Act requires the requirement that “the permission, etc. should be obtained under the relevant Acts and subordinate statutes” is “the permission, etc. under the relevant Acts and subordinate statutes.” As such, the purport of the permission, etc. under the above provision is to demand the permission, etc. necessary to satisfy the legality of the business itself, and the place of business that is not directly related to the business cannot

(B) Next, we examine the illegality of the procedure for registration of real estate brokerage.

The defendant asserts that the registration of establishment under Article 4 of the former Real Estate Brokerage Act (amended by Act No. 7638 of Jul. 29, 2005) and Article 5 subparagraph 1 (b) of the former Enforcement Decree of the Real Estate Brokerage Act (amended by the Enforcement Decree of the Licensed Real Estate Agents Act No. 19248 of Dec. 30, 2005 and the Enforcement Decree of the Real Estate Transaction Report Act), since the meaning of "the permission, etc. under the related Acts and subordinate statutes is based on the premise that at least the permission, etc. has been granted in accordance with lawful procedures, at least on the premise that the permission, etc. was granted in accordance with legitimate procedures. Thus, the plaintiff's registration of establishment must be made to the head of the competent Si/Gun/Gu with the building suitable for use as an office under the Building Act, which is not a building of this case, and thus, the plaintiff's registration of establishment cannot be deemed to be unlawful since it falsely applied for the registration of establishment under Article 5 subparagraph 2 of the Enforcement Rule of the above Act.

In full view of the reasoning of each fact-finding conducted by the court of first instance on the Yangju-dong 269-4, Yangju-dong 269-4, which is a legitimate building owned by the Nonparty, and the building of this case, which is an unauthorized building, existed together with 141.29 square meters of cement tank and 141.29 square meters of housing (hereinafter “permitted building”). The building of this case was used as a real estate brokerage office since 1996. The Plaintiff leased the building of this case from the Nonparty and applied for the establishment registration of the said permitted building to the head of Yangju-si Gun on September 2003, by submitting a lease agreement and building register of the said permitted building that was concluded by the Plaintiff and the Nonparty on the building of this case to the neighborhood living facilities (office). According to the above facts, the head of the Gun can recognize the fact that the Plaintiff and the Nonparty applied for the establishment registration of the said permitted building to the head of Yangju-si Gun.

However, even if there was a somewhat procedural error in the process of permission, etc., if the permission, etc. was null and void or cancelled and the validity thereof has not been lost, such permission, etc. shall still be deemed as constituting "permission, etc. under the relevant Acts and subordinate statutes" under Article 45 subparagraph 2 of the Enforcement Rule of the Public Works Act. Thus, the building of this case has been used as real estate brokerage business from the previous date, and the lease contract submitted by the plaintiff is indicated differently from the building that was the object of lease, and it seems that the plaintiff was not the purpose of deceiving the head of both states and making registration of brokerage business by deceiving the head of both states and clarifying the defect of repair of registration of brokerage business cannot be deemed as serious and clear. Furthermore, since the two states head of both states did not cancel the registration of the plaintiff's real estate brokerage business, the above registration act still remains effective, and it cannot be deemed that the real estate itself is excluded from the object of compensation for losses.

(C) Finally, according to the health class, Eul evidence No. 14 as to the allegation of closure of business, it is recognized that the plaintiff reported the closure of business of this case on December 31, 2003, but the business registration under the Value-Added Tax Act is only for the convenience of tax administration, and is not related to the legality of business. Thus, the business of this case cannot be deemed unlawful merely on the above basis.

(2) Loss amount

Therefore, in full view of the purport of the argument as to the amount of compensation for loss from the instant business, the Plaintiff’s average operating income for the last three years falls short of the annual operating income calculated pursuant to Articles 47(5) and 46(3) of the Enforcement Rule of the Public Works Act, and thus, the amount of compensation for loss from the instant business shall be calculated in accordance with the calculation method of annual operating income as prescribed by the above provision, and the period of compensation for loss from suspension of work shall be three months. According to the evidence No. 15, the unit price of the ordinary wage for the manufacturing sector of May 18, 2005, which is the date of the ruling on expropriation of the instant case, can be recognized as 31,309. Accordingly, the amount of compensation for loss from the instant business shall be 2,348,175 won (31,309 won x 25 days x 3 months).

3. Conclusion

Therefore, the defendant is obligated to claim against the plaintiff 2,348,175 won and the part against the defendant ordering payment in excess of the above recognized amount, as the plaintiff's claim is unfair, and the defendant's remaining appeal is dismissed as it is without merit, and it is so decided as per Disposition by the assent of all participating Justices on the bench. Since the defendant's claim of this case is justified within the above recognized limit and the remaining claim is dismissed, the part against the defendant ordering payment in excess of the above recognized amount is revoked, and the defendant's claim is dismissed as it is without merit. The defendant's remaining appeal of this case is dismissed as it is without merit.

Judges Kim Jong-sik (Presiding Judge)