[1] In a case where an executor of a public project compensates for an obstacle that impedes the implementation of a project at the price of an article that does not meet the actual expenses incurred prior to the project pursuant to Article 75(1)2 proviso of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, whether the project executor acquires the ownership of the pertinent article (negative in principle), and whether the owner of the obstacle can be demanded to remove it (negative in principle)

[2] In a case where the Korea Land and Housing Corporation, a project executor of a housing site development project, deposited compensation in accordance with the adjudication of the Central Land and Housing Commission on obstacles on the land acquired through consultation, and sought payment of waste disposal costs against Party A, including waste synthetic resin, who remains in the above land, the case affirming the judgment below which held that the Korea Land and Housing Corporation cannot request Party A to transfer wastes or claim compensation for damages equivalent to the disposal costs on the ground that Party A failed to comply with the request

[1] In light of the purport of expropriation compensation under the Land Compensation Act for obstacles under each subparagraph of Article 75(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), and Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule of the Land Compensation Act”), and the principle of reasonable compensation or reasonable compensation, in cases where a project operator compensates for obstacles that may hinder the implementation of a project at a price below the actual expenses incurred pursuant to the proviso of Article 75(1)2 of the Land Compensation Act, unless a project operator acquires the pertinent objects differently from subparagraph 3, it is difficult to view that the project operator has acquired the ownership of the relevant objects only by the compensation unless he/she takes the procedure of expropriation. In addition, the project operator may not directly request the owner of obstacles to remove the obstacles at his/her own expense, barring any special circumstance, such as the removal of them at his/her own expense under the proviso to Article 33(4) of the Land Compensation Act.

[2] In a case where the Korea Land and Housing Corporation, a project executor of a housing site development project, deposited compensation in accordance with the adjudication of the Central Land and Housing Corporation on the obstacles on the land acquired through consultation, and sought payment of waste disposal costs against Party A, including waste synthetic resin, which remains in the above land, the case affirming the judgment below which held that the Korea Land and Housing Corporation can only remove wastes directly at its own expense and request for the transfer of wastes, or claim compensation amount equivalent to waste disposal costs on the ground that the compensation amount is included in “products and raw materials” and the compensation amount is one won, and it can be deemed that both waste and waste disposal costs are determined in a lump sum on the premise that the transfer cost of wastes exceeds the price of the goods.

[1] Article 75(1) and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works / [2] Article 75(1)2 and (6) of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works; Article 390 of the Civil Act

[1] Supreme Court Decision 2010Da94960 Decided April 13, 2012 (Gong2012Sang, 776) Supreme Court Decision 2018Da277419 Decided April 11, 2019 (Gong2019Sang, 1057)

Korea Land and Housing Corporation (Attorney Choi Sung-soo, Counsel for defendant-appellant)

Defendant 1 and one other (Law Firm Han, Attorneys Kim Tae-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Na2055146 decided June 29, 2018

All appeals are 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. Factual basis

According to the reasoning of the lower judgment, the following facts are revealed.

A. On December 27, 2010, the Plaintiff completed the registration of ownership transfer on the ground of a consultation on the land for public use with respect to the land of the Seo-gu Incheon ( Address omitted) Seo-gu (hereinafter “instant land”).

B. On December 7, 2012, Defendant 1 and Defendant 1, who had been on the instant land, concluded a compensation agreement with Defendant 1 on the content that Defendant 1 removed and relocated obstacles necessary for waste treatment projects, such as building and recycling sorting machines owned by Defendant 1, and that the Plaintiff paid compensation. Of the compensation 139,34,930 won, the amount of gold payments of KRW 125,410,40 shall be KRW 13,934,490 (Article 2), and Defendant 1’s obstacles shall be completely removed or relocated until May 31, 2013 (Article 5(1)), and in the case of the reserved amount of compensation under Article 2, Defendant 1 shall pay the removal or transfer of obstacles within the period prescribed in Article 5 (Article 5(3)).

On December 7, 2012, Defendant 1 drafted a written consent to implement a compensation agreement to the Plaintiff. Thereafter, the Plaintiff paid 139,344,930 won of compensation to Defendant 1.

C. The Plaintiff filed an application for adjudication with the Central Land Expropriation Committee to transfer articles that did not reach an agreement with the owner, etc. among articles to be incorporated in the project. The Central Land Expropriation Committee, on December 18, 2014, determined the compensation, etc. for the articles pursuant to Article 75(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”) and decided on February 10, 2015 to compensate Defendant 2, the owner of the obstacles in the instant land, to compensate for the total amount of KRW 41,796,600. The details of the compensation include 12 items in total, and in the case of “industrial power” as the fourth item, the amount of compensation is KRW 5th(30,300,000,000, and then, in the case of products and raw materials (raw materials) as one won, the Plaintiff deposited the compensation amount for the claims pursuant to Article 75(1) of the Land Compensation Act.

D. The instant land contains industrial garbage, including waste synthetic resin (hereinafter “the instant waste”), and the cost of treating the instant waste at a waste disposal facility is KRW 36,967,802.

2. Claims for damages under the Wastes Control Act, etc.;

A. The lower court determined as follows.

The Plaintiff asserts that Defendant 1 violated the obligation to dispose of wastes pursuant to Article 3-2(4) of the Wastes Control Act, Article 10-3(1) of the Soil Environment Conservation Act, Article 10-4(1)1, and Article 10-4(2) of the Soil Environment Conservation Act. However, it is difficult to accept the Plaintiff’s assertion that the instant wastes constitute soil contaminants and the obstacles owned by Defendant 1 constitute the facilities subject to the control of soil contamination.

B. Examining the reasoning of the lower judgment in light of the record, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, without exhaust all necessary deliberations, or by misapprehending the legal doctrine on the Wastes Control Act, etc

3. The remaining grounds of appeal against Defendant 1

A. The lower court determined as follows.

Defendant 1, who leased the instant land and installed obstacles, from August 2005 to June 2006, was employed as the representative director of the self-employed resources management company, which collects and sells recyclable products. Defendant 2 transferred the instant land from Defendant 1 to its collection and sales business from October 30, 2006.

Defendant 1 agreed with Defendant 2 on January 18, 2013 to terminate the sublease contract with respect to the instant land. On December 9, 2013, Defendant 1 sold obstacles to the Nonparty at KRW 25,000,000. There is no evidence suggesting that there was certain waste in the instant land at the time when Defendant 1 sold obstacles to the Nonparty. According to Defendant 2’s assertion, even until November 2014, Defendant 1 transferred the parts of the instant land, the possibility that the volume of wastes increased rapidly after Defendant 1 transferred the parts of the instant land.

The plaintiff paid the compensation set forth in the compensation agreement to Defendant 1, and deposited the compensation for losses through separate rulings on the obstacles of Defendant 2.

In light of these facts, Defendant 1 performed an indemnity agreement with the Plaintiff by terminating the sub-lease contract and transferring obstacles to the Nonparty, and it is difficult to recognize that the instant wastes claimed by the Plaintiff occurred on the instant land at the time of the transfer of obstacles, and thus, Defendant 1 cannot be deemed to have violated the indemnity agreement. Even if there were some wastes at the time of the transfer of obstacles, the amount cannot be determined, and Defendant 1 should be deemed to have been recognized as having fulfilled the duty stipulated in the indemnity agreement by paying the compensation to the Plaintiff in full.

B. Examining the reasoning of the lower judgment in light of the record, the lower judgment did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

4. The remaining grounds of appeal against Defendant 2

A. Article 75(1) of the Land Compensation Act provides that the principle that a building, etc. which is an obstacle shall be compensated at the cost of relocation shall be compensated in cases falling under any of the following subparagraphs. In cases where the relocation of a building, etc. is difficult due to subparagraph 1 or the relocation thereof makes it impossible to use the building, etc. for its original purpose, the relocation cost of the building, etc. exceeds the price of the building, etc. under subparagraph 2, subparagraph 3 includes cases where the project implementer acquires the building, etc. for the purpose of direct use for public works:

Articles 33(4) and 36(1) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter referred to as the "Enforcement Rule of the Land Compensation Act") in accordance with the delegation of Article 75(6) of the Land Compensation Act shall be removed at the expense of a project operator for buildings, structures, etc. compensated at the price of goods pursuant to the proviso to Article 75(1) of the Land Compensation Act, and if the owner removes the relevant building, etc. for the purpose of using or disposing of its constituent parts, the owner shall bear the relevant expenses.

In light of the purport of expropriation compensation for obstacles under the Land Compensation Act and the principle of reasonable compensation or reasonable price compensation, if a project operator compensates for obstacles that impede the implementation of a project at the price of objects that do not actually incur pursuant to the proviso to Article 75(1)2 of the Land Compensation Act, the project operator cannot be deemed to acquire ownership of the relevant objects solely on the compensation unless he/she takes the procedure of expropriation, unlike subparagraph 3, unless he/she takes the procedure of expropriation other than that of acquiring the relevant objects. In addition, the project operator cannot demand the owner of obstacles to remove the obstacles at his/her own expense and may remove them directly at his/her own expense unless there are special circumstances, such as where the owner of obstacles wishes to remove them at his/her own expense pursuant to the proviso to Article 3(4) of the Enforcement Rule of the Land Compensation Act (see Supreme Court Decision 2010Da94960, Apr. 13, 2012).

B. On the grounds delineated below, the lower court determined that the Plaintiff, a project operator, could remove the instant wastes directly at his own expense and could not request Defendant 2 to transfer the instant wastes, or may not claim damages equivalent to the disposal cost on the ground of nonperformance.

The details of compensation paid by the Central Land Tribunal to Defendant 2 include “products and raw materials” and the amount of compensation is KRW 1.00,000,000 on the premise that the instant wastes fall under cases where the transfer cost of the instant wastes exceeds the price of the goods subject to compensation. This can be seen as determining the compensation for items below the “industrial power” as KRW 40,300,00,000, in a lump sum, on the premise that it is impossible to recycle and recycle the wastes of this case under the premise that the transfer cost of the instant wastes is more than the price

C. The lower judgment is justifiable in light of the foregoing legal doctrine, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to the scope

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)