[1] The criteria for determining whether a business is discontinued or suspended in compensation for business losses (=the possibility of transferring the business) and the method of determining the business losses

[2] The case reversing the judgment of the court below which recognized the compensation for business closure on the ground that it is difficult to readily conclude that it is substantially difficult to move the entire area to an adjoining area in light of the size of the Gyeyang site, characteristics of the adjoining area with many rural areas, and the lack of special grounds for relocation under special statutes

[1] In full view of the provisions of Article 4(4) of the Land Expropriation Act, Article 2-10(7) of the Enforcement Decree of the Public Land Expropriation Act, Article 24(1) and (2)3 of the Enforcement Decree of the same Act, and Article 25(1) and (2) and (5) of the Enforcement Rule of the same Act, in case of compensation for business losses, the criteria to distinguish whether the business is deemed to be a discontinuance of business or as a suspension of business under Article 24(2)3 of the Enforcement Rule of the same Act from whether it is possible to transfer the business to another place in the location of the business or in the adjacent Si/Gun/Gu. The determination of the possibility of such transfer should be made by comprehensively taking into account the existence of a cause for the transfer of the business in question, the type and characteristics of the business in question, the size and characteristics of the business facilities in question, the current status and characteristics of the adjacent areas, and the existence of a de facto obstructive reason

[2] The case reversing the judgment of the court below that recognized the compensation for business closure on the ground that it is difficult to readily conclude that it is substantially difficult to move the two-way area to an adjacent area in light of the size of the two-way area, characteristics of the adjoining area with many rural areas, and the lack of special legal grounds for relocation

[1] Article 57-2 of the Land Expropriation Act, Article 4(4) of the Special Act on the Compensation for Public Loss, Article 2-10(7) of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 24(1), Article 24(2)3, Article 25(1), (2), and (5) of the Enforcement Rule of the Special Act on the Compensation for Public Loss and Compensation for Loss / [2] Article 57-2 of the Land Expropriation Act, Article 4(4) of the Special Act on the Compensation for Public Loss, Article 2-10(7) of the Enforcement Decree of the Special Act on the Compensation for Public Loss, Article 24(1), (2)3, Article 25(1),

[1] Supreme Court Decision 89Nu7719 delivered on October 10, 1990 (Gong1990, 2286) Supreme Court Decision 94Nu882 delivered on December 23, 1994 (Gong1995Sang, 698), Supreme Court Decision 97Nu3972 delivered on October 26, 199 (Gong199Ha, 2433)

Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Central Land Expropriation Committee and one other (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 98Nu3206 delivered on February 3, 1999

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that since permission for the diversion of farmland, permission for forest damage, permission for construction of fraternitys and composts, etc., permission for construction of facilities discharging livestock in a zone where livestock raising is prohibited, it is impossible to install mass facilities in a zone where livestock breeding is prohibited, and permission for the alteration of the form and quality of water within an urban planning zone and restriction on restricted activities within a special-purpose zone should be imposed within an urban planning zone, and in a development restriction zone where it is impossible to newly build a mass field or a neighboring Gun, Kimcheon-si, Sung-si, Sung-si, Si, Gu, Daegu-si, Daegu-si, etc., where the plaintiff is opposed to the neighboring Gun, etc., and since it is difficult to install a mass field, it is not easy to seek a legal restriction, and it is not possible to recognize that there is a special urban facility under the provisions of Article 2 of the Act on the Improvement of Land Quality and Quality of Urban Areas and to establish a new mass field in a zone where livestock breeding is prohibited.

2. In full view of the provisions of Article 4(4) of the Public Land Expropriation Act, which applies mutatis mutandis under Article 57-2 of the Land Expropriation Act, Article 2-10(7) of the Enforcement Decree of the same Act, and Article 24(1), 24(2)3, 25(1), (2), and (5) of the Enforcement Rule of the same Act, the criteria to distinguish whether a business loss compensation is deemed a discontinuance of business or as a suspension of business under Article 24(2)3 of the Enforcement Rule of the same Act shall be whether it is possible to transfer the business in question to another place in the location of the business or in the adjacent Si/Gun/Gu. The determination of the possibility of such transfer shall be made by taking into account the existence of the causes for the transfer of the business in question, the type and characteristics of the business in question, the size and characteristics of the business facilities in question, the current status and characteristics of the business facilities in question, the parties’ efforts to move to that place, and

However, according to the records, the plaintiff can be found to have raised a total of 404.21 square meters in total, 2,04.21 square meters in 1,00 m3,000 m3 in 1,000 m3,000. Thus, the scale of the m3m3 in this case is not large. Meanwhile, according to the records and relevant Acts and subordinate statutes, the m3m3 in the area adjacent to m4,000, Sungju-gun and Gun, among the areas adjacent to m4,00, is a rural area, while the area is within the administrative district of Daegu Metropolitan City, North Korea, Kimcheon-si, and Simsi, which is also a rural area, and thus, it is difficult to readily conclude that the m4m3 in this case is a special reason for direct restriction on the transfer of the m4,000 m4,000 m4,000 m3,000.

The court below seems to have recognized that the establishment of a sub-committee is practically impossible if there is an objection from the head of the neighboring Si/Gun/Gu due to the result of a fact-finding on the head of the neighboring Si/Gun/Gu. However, the fact-finding results merely do not mean that if there is an objection from the neighboring residents, the establishment of a sub-committee may be practically impossible, and in fact, it is not impossible for the plaintiff to move the sub-committee to a specific place, but it is not impossible for the plaintiff to move it to the adjacent area because there is an objection from the neighboring residents, or that it is not impossible for the neighboring residents to find an appropriate place to oppose the relocation. Therefore, it cannot be readily concluded that the plaintiff

In light of the above circumstances, the court below made every effort to move the Yang River of this case to the extent that the plaintiff could not move the Yang River of this case for any reason, but there is no appropriate place for residents in neighboring areas to not oppose the relocation, and the location, size, and circumstances of the existing Yang River of this case should have been reviewed further and considered the possibility of the transfer of the Yang River of this case. However, the court below determined that the transfer of the Yang River of this case was considerably difficult only for the reasons stated in its decision without doing so. Thus, the court below erred by misapprehending the legal principles on compensation for losses caused by the discontinuance of business, failing to exhaust all necessary deliberation, or violating the rules of evidence, thereby affecting the conclusion of the judgment. The grounds for appeal pointing this out are with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)