The time when the obligation to pay damages for delay on compensation for the remaining land under Article 73 (1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects occurs.

The Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor does not specify the due date for the payment of compensation for the remaining land, and it is difficult to find a systematic and objective theoretical basis to interpret the due date as the alteration of rights of the land incorporated into the due date as the alteration of rights. Therefore, the obligation to pay compensation for the remaining land is reasonable to regard the due date as an obligation for which the due date has not been determined. Therefore, in the case of the obligation to pay compensation for the remaining land, as it is after the actual loss of the remaining land occurred, and the remaining land owner is liable

Article 73(1) and (2) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Articles 387 and 397 of the Civil Act

Plaintiff 1 and four others (Law Firm Uniform, Attorneys Gyeong-he et al., Counsel for the plaintiff-appellant)

Korea Highway Corporation (Attorney Kim Tae-ju, Counsel for defendant-appellant)

Seoul High Court Decision 2017Nu51947 decided October 19, 2017

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Judgment on Defendant’s ground of appeal

The lower court determined on March 28, 2008 that “land compensation-related work” entrusted by the Minister of Land, Transport and Maritime Affairs in relation to the implementation of “land compensation-related work” by the Minister of Land, Transport and Maritime Affairs pursuant to Article 2008-14 of the Public Notice of the Ministry of Land, Transport and Maritime Affairs of March 28, 2008 includes not only the duty of compensation for incorporated land itself, but also the duty of compensation for losses, such as a decrease in the price of the remaining land under Article 73 of the Act

Examining the reasoning of the lower judgment in light of the relevant statutes and legal principles, the lower court did not err by misapprehending the legal doctrine on the duty to compensate for losses incurred by public works.

2. Judgment on the Plaintiffs’ grounds of appeal

A. (1) The Land Compensation Act provides that if the price of 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 it is necessary to install a new passage, ditch, fence, etc. or to carry out any other construction work on the remaining land, the project operator shall compensate for the losses or the cost of the construction (Article 73(1) main text). However, there is no express provision as to the time from which the damages for delay for the compensation occurred.

Since damages for delay are damages caused by delay (Article 392 of the Civil Act). If damages for delay occur, the obligation is established and the due date shall arrive (Article 387 of the Civil Act). Therefore, in order to determine when and when damages for delay of remaining land under the Land Compensation Act occur, two requirements should be met.

(2) First, we examine the timing of occurrence of the obligation to compensate for the remaining land.

The project operator shall not always incur any loss on the remaining land by acquiring or using part of a group of land belonging to the same owner. Accordingly, the value of the adjacent land may increase due to the expropriation and development of part of a group of land.

In cases where a loss is incurred to the remaining land, the loss of the remaining land subject to compensation under Article 73 of the Land Compensation Act includes ① the loss incurred due to the partial acquisition or use of the land due to the price formation factors such as the conditions of the land or the conditions of access, ② the loss incurred due to the type, structure, use, etc. of facilities installed as a result of the implementation of a project for the acquisition or use of the land, ③ the loss incurred due to the alteration of the actual conditions of use at the time of the decision on expropriation, and ③ the decline in the value of use and exchange according to the future availability, ease of transactions, etc. (see Supreme Court Decision 2010Du23149, Feb. 24, 201). Therefore, the loss of the remaining land subject to compensation for loss is very diverse.

It is not fixed at the time of the occurrence of a loss on the remaining land. There is also a case where the project implementer acquires only a part of the land in a group and thereby acquires the ownership of the land partially incorporated and the remaining land is separated and reverted (hereinafter “transfer of rights to acquired land”), but there is also a case where a loss is incurred to the remaining land due to the construction of public facilities or the operation and operation of public facilities installed by public works. Accordingly, the corresponding liability for compensation arises only when a specific loss is actually incurred due to a variety of reasons.

As such, the duty to compensate for the remaining land does not always occur at a specific time, but can vary depending on individual and specific circumstances, the time and contents, and it is necessary to verify and evaluate the individual and specific circumstances in order to determine the occurrence and the time and contents of the duty.

(3) Next, we examine the due date of the obligation to pay compensation for the remaining land.

As above, losses on the remaining land are different from the cause and time of occurrence. As such, it is difficult for a project implementer to specifically understand the existence and scope of the obligation to pay compensation for the remaining land unless the owner of the remaining land specifically claims the details of the loss incurred on the remaining land. The Land Compensation Act provides that the liability to pay compensation for the remaining land shall not be claimed after one year from the completion of the relevant public works unless the due date is specified in detail (Article 73(2)).

In the case of compensation for losses for incorporated land, the difference between the legitimate amount of compensation and the amount of compensation determined in the procedure of increase and decrease in the compensation amount shall be paid from the day following the date of expropriation to the day immediately following the date of expropriation (see Supreme Court Decision 91Nu208 delivered on December 24, 191, etc.). However, in the case of compensation for the remaining land for the following reasons, it shall be viewed differently.

(1) The reasonable amount of compensation determined in the litigation procedures for increase and decrease of compensation for incorporated land falls under the consideration for the right acquired by the project operator. Therefore, it conforms to the concept of fairness and the principle of fair compensation under the Constitution to allow the project operator to pay damages for delay from the next day of the date of expropriation with respect to the difference between the reasonable amount of compensation not paid until the commencement date of expropriation and the amount of compensation determined in the adjudication procedures among the above amount of compensation. On the other hand, the loss of remaining land is caused by the incorporation and acquisition of part of the land, and thus, it is subject to compensation by the

② In case of compensation for incorporated land, only a project operator may file an application for adjudication with the competent Land Tribunal without agreement on compensation after project approval (Article 28(1)). If a project operator pays or deposits the compensation determined by the adjudication by the commencement date of expropriation, and if a project operator fails to do so, the relevant adjudication becomes null and void (Articles 40 and 42). This Act does not require a prisoner to “request the payment of compensation for incorporated land to a project operator before adjudication is made.” On the other hand, in case of compensation for remaining land, the relevant landowner shall request the project operator for the payment of compensation (Article 73(2)), and the relevant landowner may also file an application for adjudication with the competent Land Tribunal without agreement on compensation between the project operator and the owner of the remaining land (Articles 73(4) and 9(7)). Therefore, the procedure for payment of compensation shall begin by claiming the payment of compensation to a project operator prior to adjudication.

(3) The circumstance that a project operator acquires only a part of a group of land in installments is determined at the project approval phase (when the competent administrative agency grants project approval, the detailed items of land to be expropriated or used by the project operator shall be publicly announced in the Official Gazette. Article 22(1) of the same Act applies). If an owner of the remaining land becomes aware of such circumstance, he/she is guaranteed the opportunity to exercise his/her right by actively claiming compensation for the remaining land from the project operator at an early stage, and by filing an application for adjudication on compensation for the remaining land without agreement with the competent Land Tribunal. Therefore, there is no need to further protect the project operator by deeming that there is a delay liability for the payment of compensation for the remaining land in the absence

(4) Ultimately, the Land Compensation Act does not set the due date for the payment of compensation for the remaining land, and it is difficult to find a systematic and objective theoretical basis to interpret the due date as the alteration of rights to the land included in the due date as the alteration of rights. Therefore, it is reasonable to deem that the obligation to pay compensation for the remaining land is an obligation with no fixed due date. Therefore, in the case of the obligation to pay compensation for the remaining land, it shall be deemed that the remaining land owner has the duty to pay compensation for delay from the date following the due date when the project implementer requested the performance (see Article

B. In the instant case, the Plaintiffs filed a claim for damages for delay calculated at the rate of 5% per annum from the day following the day of the day of the alteration of the right to each incorporated land on the remaining amount of compensation for losses. The lower court determined that the Land Compensation Act did not set the due date for the payment of compensation for the remaining portion, and that damages for delay occurred from the day following the Plaintiffs filed a claim for the payment of compensation for losses for the remaining portion to the Defendant pursuant to Article 387(2) of the Civil Act, and dismissed the claim for damages for delay from the day following the day of the alteration of the right to each incorporated land until March 3,

Such judgment of the court below is justifiable on the basis of the above statutes and legal principles. The court below did not err in its judgment by misapprehending the legal principles on damages for delay of remaining land under Article 73 of the Land Compensation Act.

3. Conclusion

The plaintiffs and the defendant's appeals are all dismissed as it is without merit, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)