Whether the total income of agricultural products can be recognized by means of certification other than those prescribed in the standards for recognition of actual income from agricultural products publicly notified by the Minister of Land, Transport and Maritime Affairs in relation to compensation for agricultural losses prescribed in Article 77 of the former Act on Acquisition of and Compensation for Land, etc. for

Article 7(2) and (4) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 11017, Aug. 4, 201); Article 48(1) and (2) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Presidential Decree No. 1800, Nov. 13, 2009);

Plaintiff

Korea

Busan High Court Decision 2010Nu2555 decided October 5, 2011

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

The grounds of appeal are examined.

1. The main sentence of Article 77(2) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Act No. 11017, Aug. 4, 201; hereinafter “Public Works Act”) provides that “An actual farmer shall be compensated for losses incurred by agriculture by taking account of income, etc. per unit area of farmland into account.” Paragraph (4) provides that “The detailed calculation of and criteria for compensation under the provisions of paragraphs (1) through (3) and criteria for compensation, and matters concerning standards for recognition of actual farmer under the provisions of paragraph (2) shall be prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.” According to such delegation, Article 48(1) of the former Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 180, Nov. 13, 2009; hereinafter “Enforcement Rule of the Public Works Act”) provides that “The total amount of sample income per farming household shall be divided into an annual average amount of income per agricultural loss per farmland.”

The standards for recognizing actual income of agricultural products (Article 203-4 of the Ministry of Land, Transport and Maritime Affairs) announced pursuant to the above provisions; Article 3 provides that actual income per unit area of Article 3 shall be calculated based on the formula of "total farmland 】 income rate"; Article 4 provides that the gross income of agricultural products shall be calculated based on supporting materials falling under each of the following subparagraphs, excluding sales expenses such as entrustment fees, etc.; the wholesale market management office or market manager under the provisions of Article 21 (1) of the Agricultural and Fishery Products Development Act; the wholesale market corporation or market manager under the provisions of Article 22 of the Agricultural Products Development Act; the contributing corporation under the provisions of Article 24 of the Agricultural and Fishery Products Development Act; or the cooperative marketing corporation or the cooperative marketing center under the provisions of Article 48 of the Agricultural and Fishery Products Development Act issued by the founder or the market wholesaler under the provisions of Article 48 of the Agricultural Products Development Act (referring to the statement proving the actual income of agricultural and fishery products shipped under the provisions of Article 41 (2) of the Agricultural and Fishery Products Development Act;

In light of the contents, form, purport, etc. of the relevant statutes and the principle of fair compensation as stipulated in Article 23(3) of the Constitution, compensation for losses incurred by expropriation, etc. due to public necessity should be a legitimate compensation, and compensation for agricultural losses should be based on actual income reflecting the unique circumstances, such as the characteristics of the farmland to be expropriated and the state of farming, etc. Therefore, setting the documents, etc. proving transaction performance as supporting materials for the total income of agricultural crops in the instant notice is merely an example of objectively and reasonably proven methods, but it is reasonable to deem that the total income of agricultural crops can be recognized if objectivity and rationality exist even in the method of proof other than the documents enumerated above.

2. According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The court below determined that the plaintiff's claim of this case in the end is groundless on the grounds that the application for transaction performance certification and the statement of account (hereinafter "the transaction data of this case") concerning the sales amount of the married couple supplied to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office, among the total revenue of the crops alleged by the plaintiff does not constitute a method of proof as stipulated in Article 4 of the notice of this case.

3. However, such determination by the court below is difficult to accept in light of the above legal principles and records.

원심판결 이유와 기록에 의하면, 원고는 2001년경부터 2004년경까지 이 사건 수용토지에 비닐하우스를 설치하고 딸기, 고추, 깻잎 등을 재배하여 그 중 딸기를 ○○상회에 판매하여 왔으며, 제1심증인 소외인은 ○○상회의 서기로서 과일운반 및 판매, 계산서 작성 등의 업무에 종사하면서 2001년경부터 2004년경까지 원고가 생산한 딸기를 공급받았고 이 사건 거래자료가 이러한 거래내역에 부합한다는 취지로 진술한 사실을 알 수 있다.

In light of these facts in light of the above legal principles, although the transaction data of this case is not included in the verification data stipulated in Article 4 of the Notice of this case, there is a lot of room to view that there is objectivity and rationality to recognize the total income of the plaintiff's crops, unless there are other special circumstances to suspect its credibility.

Nevertheless, the court below calculated the Plaintiff’s compensation for losses on the ground that the transaction data of this case was excluded from the verification data of gross income of crops only for the reasons stated in its holding. In so doing, the court below erred by misapprehending the legal principles on the legal nature of Article 4 of the Notice, etc., and failing to exhaust all necessary deliberations, which affected the conclusion

4. 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 In-bok (Presiding Justice)