[1] The case affirming the judgment below holding that the above service route right is not a right to compensate for losses separate from the right to operate a ferry business, in case where the agricultural cooperative Gap, which engaged in a ferry business with a license, claimed against the local government that carried out a construction project of inland bridge and lost the service route due to the construction of inland bridge and applied mutatis mutandis Articles 23 and 23-6 of the former Enforcement Rule of the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation Therefor

[2] The meaning of “after-sale” under Article 23-5 of the former Enforcement Rule of the Act on Special Cases concerning the Acquisition of Land for Public Use and Compensation for Loss, and whether the circumstance where a business operator, who operated a business outside a public project implementation zone, remains in the area where the business customer is located and used facilities, etc. installed by the public project implementation and provided by the business operator, even after the public project implementation zone remains (negative)

[3] The standard point of time to determine whether the claimant who suffered losses due to the implementation of the public project has the right to receive compensation (=the time when the public project was implemented)

[1] In a case where the agricultural cooperative Gap, which engaged in ferry business with a license, claimed compensation for losses by applying Articles 23 and 23-6 of the former Enforcement Rule of the Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation therefor (repealed by Article 2 of the Addenda of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor) against the local government that implemented the construction project of inland bridge with the loss of the aviation route due to the construction of inland bridge, the case affirming the judgment below holding that the aviation route right is not subject to indirect losses unless the relevant Act and subordinate statute, such as the former Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation for Loss Compensation for Land, etc. for Public Works (repealed by Article 2 of the Addenda of the Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation for Land, etc. for Compensation therefor, and thus, it cannot be seen that the above aviation route right includes the scope of the aviation right, and it cannot be subject to compensation for losses.

[2] Article 23-5 of the former Enforcement Rule of the Act on Special Cases concerning the Acquisition of Land, etc. for Public Works and the Compensation therefor (repealed by Article 2 of the Addenda of the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, No. 344 of December 31, 2002) provides that “Where a person who has obtained a license or permission, etc. or has reported and conducts a business outside a public project implementation zone becomes disqualified by at least 2/3 of the surrounding land due to the execution of a public project and is unable to conduct a business, the person shall evaluate and compensate the amount of losses pursuant to the provisions of Articles 24 and 25.” Here, “afterward land” means “area where the customer is located” and “after the implementation of a public project implementation zone, the situation that the person has not used facilities, etc. installed by the implementation of the public project and provided services, etc. by the business operator after the implementation of the public project is still located within the area where the customer is located shall not be seen as “after loss”.

[3] Compensation for losses is acknowledged in light of the overall fairness and burden of sacrifice of property, which is caused by a legitimate exercise of public authority, such as the implementation of a public project. Thus, whether a claimant who suffered losses due to the implementation of a public project has the right to receive compensation should be determined at the time of the implementation of the relevant public project.

[1] Article 3 of the former Act on Special Cases Concerning the Acquisition of Land for Public Works and the Compensation for Loss (repealed by Article 2 of the Addenda to the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, Act No. 6656 of February 4, 2002), Articles 23 and 23-6 of the former Enforcement Rule of the Act on Special Cases Concerning the Acquisition of Land, etc. for Public Works and the Compensation for Loss (repealed by Article 2 of the Addenda to the Enforcement Rule of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, Act No. 344 of December 31, 2002) / [2] Article 23-5 of the former Enforcement Rule of the former Act on Special Cases Concerning the Acquisition of Land, etc. for Public Works and the Compensation for Loss / [3] Article 23-5 of the former Enforcement Rule of the Act on Special Cases Concerning the Acquisition of Land, etc. for Public Works and the Compensation Therefor

[3] Supreme Court Decision 2001Da44352 decided Nov. 26, 2002 (Gong2003Sang, 190) Supreme Court Decision 2004Da27020, 27037 decided Oct. 27, 2004

Agricultural Cooperatives (Law Firm Song, Attorneys Han-young et al., Counsel for the defendant-appellant)

Jeonnam-do (Attorney Kang Dong-chul, Counsel for defendant-appellant)

Gwangju High Court Decision 2009Na2339 Decided December 9, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The court below rejected the plaintiff's assertion that the plaintiff's claim that the plaintiff acquired a ferry business license is not subject to indirect losses under the relevant statutes, such as the former Act on Special Cases Concerning the Acquisition of Land for Public Use and the Compensation for Loss (repealed by Act No. 6656 of Feb. 4, 2002) and there is no provision to apply mutatis mutandis to indirect losses of the right to use a sea route. Thus, the plaintiff's claim that the right to use a sea route should be subject to compensation for losses by analogy of the former Enforcement Rule of the Act on Special Cases Concerning the Acquisition of Land for Public Use and the Compensation for Loss (amended by Act No. 6656 of Feb. 4, 2002).

In light of the relevant laws and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the right to compensate for losses or the analogical application of indirect loss compensation provisions under the former Enforcement Rule of the Special Act.

2. Regarding ground of appeal No. 2

A. Article 23-5 of the former Enforcement Rule of the Special Act on Public Works provides that “Where a person who runs a business after obtaining a license or obtaining a report pursuant to the relevant Acts and subordinate statutes outside a public project implementation zone and making a report thereon is unable to conduct his/her business due to the loss of at least 2/3 of the hinterland due to the implementation of the public project, the person shall evaluate and compensate for the loss pursuant to the provisions of Articles 24 and 25.” Here, the term “after the transfer” refers to “area where the customer is located” and “after the transfer” refers to “area where the business is located,” and even after the public project implementation zone remains in the area where the customer is located after the execution of the public project, the circumstance that the business operator used the facilities, etc. installed by the implementation of the public project and provided by the business operator does not constitute “the loss of the transfer of the facilities, etc. after the transfer

B. The lower court determined to the effect that, solely on the ground that the Plaintiff’s ferry business was discontinued due to the Plaintiff’s implementation of the Plaintiff’s temporary construction of the instant landing bridge on May 22, 2008, due to the Plaintiff’s loss of at least 2/3 of the surrounding land area due to the Plaintiff’s discontinuation of the Plaintiff’s ferry business due to the Plaintiff’s failure to use the vessels provided by neighboring residents, etc. as a means of marine transportation after the instant landing bridge was completed on or around May 22, 2008.

In light of the above legal principles and the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the rearness of Article 23-5 of the Enforcement Rule of the former Enforcement Rule of the Public Special Act or the losing of the hinterland.

3. As to the third ground for appeal

A. Compensation for losses is recognized in light of the overall fairness and burden for special sacrifice of property caused by a legitimate exercise of public authority, such as the implementation of a public project. Thus, whether a person claiming to have suffered losses by the implementation of a public project has the right to receive compensation should be determined at the time of the implementation of the relevant public project (see, e.g., Supreme Court Decisions 2001Da44352, Nov. 26, 2002; 2004Da27020, 27037, Oct. 27, 2004).

B. According to the facts established by the court below, the defendant conducted a preliminary feasibility study of the State-funded local highway from December 1995 to June 200, and conducted a preliminary feasibility study, a public announcement of the basic road, a tender announcement of the construction of a temporary site for an annual bridge, a shop design, and an environmental review. The road zone was determined and publicly announced on August 25, 200, and the commencement of the instant temporary installation work at that time.

Meanwhile, Article 49-2 of the Marine Transportation Act (amended by Act No. 8046, Oct. 4, 2006; hereinafter “former Marine Transportation Act”) stating that the Plaintiff shall apply mutatis mutandis to compensating for losses incurred by the discontinuation of the Plaintiff’s ferry business following the construction and alteration of the instant land landing zone, was newly established and enforced from April 5, 2007. The Addenda did not provide for the retroactive application of Article 49-2, and the entire amended by Act No. 8381, Apr. 11, 2007 (hereinafter “Revised Marine Transportation Act”) did not provide for the provisions related to the compensation of losses, such as Article 43 and Article 49-2, but also does not provide for the retroactive application of Article 43.

In light of the above legal principles, the issue of whether the Plaintiff may claim compensation for losses incurred by the Plaintiff’s discontinuation of the Plaintiff’s ferry business due to the construction and alteration of the instant land landing zone against the Defendant should be determined at the time of the implementation of the instant land landing zone. At that time, there was no provision that compensates for such losses under the Marine Transport Act, and Article 43 of the amended Marine Transportation Act, which was newly established after the implementation of the instant land landing zone temporary installation project, cannot be applied retroactively to the time of the implementation of the instant land landing zone temporary installation project. Thus, the Plaintiff cannot be asserted to have acquired the Defendant’s claim for compensation by analogy of the aforementioned provisions.

Although the reasoning of the court below is somewhat insufficient, it is just to reject the plaintiff's claim for compensation on the premise that Article 49-2 of the former Marine Transportation Act or Article 43 of the amended Marine Transportation Act may apply mutatis mutandis to this case, and there is no error in the misapprehension of legal principles as to the interpretation and application of Article 23 (3) of the Constitution, as otherwise alleged in the ground of appeal.

4. As to the fourth ground for appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, so long as the court below cannot be deemed that the defendant is liable to compensate the plaintiff, it is just to accept the plaintiff's assertion that since the act of commencing the project of the temporary site of this case without compensating the plaintiff constitutes a tort, and therefore the damage shall be compensated for is not erroneous in the misapprehension of legal principles as to

In addition, as long as the lower court’s main determination that the Defendant is not liable for damages is justifiable, the lower court’s additional determination that it cannot be deemed that the Plaintiff’s actual and realistic infringement on the Plaintiff’s ferry business due to the Defendant’s temporary installation project for the instant landing bridge cannot affect the conclusion of the judgment. Therefore, this part of the ground of appeal is without merit without examining further.

5. Ground of appeal No. 5

As seen earlier, insofar as the Defendant’s duty to compensate for losses and duty to compensate for damages is not recognized, the grounds of appeal as to the point of time for calculating the amount of compensation and the amount of compensation for damages are without merit without further review.

6. Other grounds of appeal

According to the records, the plaintiff stated in the application for the change of the claim and the cause of the claim as of June 10, 2009 that the plaintiff primarily claims the compensation for damages and claims for damages arising from the conjunctive tort. Since it is apparent that the above application for change was made on July 1, 2009 on the first day of pleading of the court below, it is obvious that the above application for change was made on July 1, 2009, and therefore, it is not erroneous in the judgment of the court below that the court below made the claim for damages

7. 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 Lee In-bok (Presiding Justice)