Whether “Scheduled public road site” constitutes a private road under Article 26(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (negative)

Article 26(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule of the Act on Public Works Projects”) provides that “A road other than a private road under the Private Road Act, which is established by a landowner himself/herself for the convenience of his/her own land and a road for which it is impossible for the landowner to restrict another’s traffic by his/her own will,” and that a road is used as a road after being determined as a road under a Si/Gun management plan under the National Land Planning and Utilization Act, shall be excluded from a private road in fact.” “A road is used as a current state due to the determination and public announcement of a public project or an urban planning, but the land in question is being provided as a long-term undeveloped state of urban planning facilities even if the public project is not actually implemented, if the land is assessed based on the actual private road, then the land is determined as a road management plan for the city/Gun and immediately more unfavorable to landowners, considering that it would result in excessive disadvantage in calculating the compensation status before expropriation.”

Article 26 (2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

Jinju-si (Law Firm Geum River, Attorneys Kim Won-tae et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dongnam, Attorneys Han Hong-man et al., Counsel for the defendant-appellant)

Busan High Court (Chowon) Decision 2013Nu1549 decided March 20, 2014

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

We examine the grounds of appeal.

1. Article 26(2) of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) provides that “A road, other than a private road under the Private Road Act, which is established by a landowner himself/herself for the convenience of his/her own land, and a road for which the landowner cannot restrict another’s passage by his/her own will,” is excluded from a de facto private road, which is being used as a road after the determination as a road under a Si/Gun management plan under the National Land Planning and Utilization Act. Thus, considering that “a road, other than a private road under the Private Road Act, is established for the convenience of his/her own land, and is being used as a road since the determination and public notice of a public interest plan or an urban planning plan is made, the land in question is being used as a current state but has not been actually implemented as a long-term and undeveloped state of urban planning facilities, if the compensation amount is assessed based on the actual road, it would be excessively unfavorable for landowners to be excluded from a public works project.”

2. According to the reasoning of the judgment below, the court below acknowledged the following facts: ① (a) on September 6, 1991, a public notice of the urban planning decision to newly build a road on the instant land among the land before subdivisions was made; (b) on September 194, the land before subdivision was divided and constructed on the ground; and (c) on the instant land, a commercial building was offered to the general public for traffic, such as passage roads for residents of the above ground buildings from around that time; and (d) on the instant land, although it was determined as a planned site for a road under the Urban/Gun management plan under the National Land Planning and Utilization Act and was not determined and publicly announced as a planned site for a road, it does not constitute a de facto private road under Article 26(2) of the Enforcement Rule of the Public Works Act. In light of the above legal principles and records, the judgment of the court below is justifiable; and it did not err by misapprehending the legal principles on “ de facto private road” or “road,” and failing to exhaust all necessary deliberations.

3. Conclusion

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 Park Poe-young (Presiding Justice)