Cheongju Mye Co., Ltd. (Law Firm Gyeong, Attorneys Gyeong Sung-sung et al., Counsel for the plaintiff-appellant)

Incheon Metropolitan City Urban Development Corporation (Law Firm Han-gu, Attorneys Lee Ba-han et al., Counsel for the plaintiff-appellant)

July 15, 2010

1. The defendant shall pay to the plaintiff 160,804,000 won with 5% interest per annum from October 27, 2009 to April 28, 2010, and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Defendant is a project implementer of a general local industrial complex development project of Seo-gu Incheon, Seo-gu, Incheon, Seo-gu, Incheon (No. 2006-242, July 30, 2007, No. 2007-159, hereinafter “instant project”).

B. From September 1, 2004, the Plaintiff: (a) moved on April 30, 207 to manufacturing (re-manufacturing) and wholesale business in the trade name of the Seo-gu Incheon Special Metropolitan City (Land Number 1 omitted); (b) on September 1, 2006, the Plaintiff changed its trade name to “Cheongnam-si Special Metropolitan City (New Registration 24, 2004 (Registration No. 1 omitted); and (c) on April 30, 207, the Plaintiff moved to the place of business of the same (number 2 omitted); (d) on September 1, 2006, the name was changed to the “Cheongnam-si Special Metropolitan City Mayor (Seoul Special Metropolitan City Mayor 1 omitted); and (e) on April 30, 207, the land (number 2 omitted); (e) the land (number 2 omitted); (g) the place of business of the instant project (hereinafter referred to as “land number 2 omitted); (g) the place of business.

C. On September 16, 2009, the Incheon Metropolitan City Regional Land Expropriation Committee dismissed the Plaintiff’s claim on the ground that the Plaintiff’s business place was not caused by public works due to the expiration of the lease period, and the date of commencement of expropriation was set on October 26, 2009.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 and 3 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The plaintiff asserts that ① from the date of the public announcement of the project in this case before the date of the public announcement of the project in this case, only the place of business (number 2 omitted) has been moved to the land (number 2 omitted) while maintaining the identity and continuity of the business in the land (number 1 omitted) before the public announcement of the project in this case, it falls under the requirements for business compensation, and ② even the obstacles in this case were moved to the land (number 2 omitted) in the project district in this case at the time of the public announcement

In regard to this, the Defendant: (a) as to the business compensation, the Plaintiff voluntarily discontinued its business due to the termination of the lease term of the land (number 1 omitted) around December 31, 2006, the Plaintiff did not incur any loss due to the implementation of the public works; (b) the continuity and identity of the business between the above business that the Plaintiff discontinued and the business newly commenced on and around April 2007 (number 2 omitted); and (c) the business newly commenced on and from the land (number 2 omitted) was conducted without the permission for the piling up of the goods as well as the business day after the public announcement of the business; and (d) the instant obstacles did not meet the requirements for the business compensation, and (e) the instant obstacles were installed without the permission after the public announcement of the project.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

C. Determination

(1) Article 45 of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Construction and Transportation No. 556, Apr. 12, 2007) provides that the business losses shall be compensated for after obtaining permission, etc. under related Acts and subordinate statutes at legitimate places (referring to unauthorized buildings, etc., illegal form and quality alteration land, and other places where the act of piling up goods is prohibited under other Acts and subordinate statutes) prior to the date of the public announcement of the project approval, and the business losses shall be determined based on the public announcement of the project approval. Accordingly, if the business losses are compensated for after the public announcement of the project approval, even if the business losses were to be moved to another place, the business at the time of the public announcement of the project are still subject to compensation for losses, and if the aforementioned transfer was made after the public announcement of the project approval, the business losses shall not be deemed to fall under losses due to the execution of the public project even if the previous grounds were to fall under the termination of the lease agreement.

(2) Next, if it is recognized that the obstacles in this case were installed on the land at the time of December 26, 2006 (number 1 omitted), which is the public announcement of the project approval of the instant case, with respect to compensation for obstacles, it shall be subject to compensation, and even if the Plaintiff did not obtain any separate permission in the transfer and installation of the land (number 2 omitted), it shall be subject to compensation.

(3) If so, the issue is whether business facilities and obstacles entered in the goods inspection report (hereinafter “the goods inspection report of this case”) prepared by the Defendant on the land (number 2 omitted) around August 2007 exist at the time of the Plaintiff’s operation in the land (number 1 omitted) as of the public announcement date of the public announcement date of the public announcement date of the project approval, and according to the written evidence Nos. 6 through 9, the Plaintiff is deemed to have transferred all business facilities and obstacles described in the goods inspection report of this case to the land (number 1 omitted) as alleged by the Defendant when the Plaintiff moves from the land (number 1 omitted) to the land (number 2 omitted), and it is recognized that the Plaintiff continued to operate the business, not after closing or suspending the business as alleged by the Defendant, and they are essential for the Plaintiff to operate the business facilities and obstacles described in the goods inspection report of this case.

(4) According to the result of the appraisal commission with respect to the Nonparty of this court, it is recognized that the legitimate business and obstacle compensation calculated based on the contents of the article investigation report of this case are KRW 160,804,00. As such, the Defendant is obliged to pay to the Plaintiff damages for delay calculated by the rate of 5% per annum under the Civil Act from October 27, 2009 to April 28, 2010, which is the day following the date of delivery of the application for modification of the purport of this case’s claim, and from the next day to the day of full payment, 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

[Attachment Form 5]

Judges Embunwon (Presiding Judge) Cho Young-ho et al.