Prior administrative decision on each compensation item before suing

1. 01Question

   May a person who suffered loss on a residual building because part of it was taken for a public works project sue the project operator directly without first going through the administrative decision procedure, even where that procedure was completed for the land taken, and must the procedure be judged item by item?

2. 02Holding

   No. Under the former Act on the Acquisition of and Compensation for Land etc. for Public Works Projects, an owner seeking compensation for the decrease in the price of the residual building under Article 35(1) of its Enforcement Rule, or for repair costs under Article 35(2), must first go through the administrative decision procedure under Articles 34 and 50 and only then may seek relief under Articles 83 to 85, and a direct suit against the project operator is not allowed, the same being true where the procedure was completed for the land taken. Whether the procedure was completed is judged compensation item by item, and since the two kinds of compensation differ in legal basis, requirements, subject and scope, and valuation method, an objection decision on the price decrease does not cover a claim for repair costs.

   Points at issue, verbatim

   공익사업에 건축물의 일부가 편입됨에 따라 잔여 건축물에 손실을 입은 자가 재결절차를 거치지 않은 채 곧바로 사업시행자를 상대로 잔여 건축물 가격감소 또는 보수비에 관한 손실보상을 청구할 수 있는지 여부(소극)

   Unofficial English translation

   Whether a person who has suffered loss to a remaining building as a consequence of part of a building being taken into a public works project may claim compensation for losses, in the form of a diminution in the value of the remaining building or repair costs, directly against the project operator without undergoing the adjudication procedure (negative)

3. 03Disposition

   Reversed and rendered by the Supreme Court Stated in the decision

   원심판결 중 잔여 건축물 보수비에 관한 손실보상청구의 피고 패소 부분을 파기하고, 이 부분 원고들의 소를 각하한다. 소송총비용은 원고들이 부담한다.

   Unofficial English translation

   The part of the judgment of the court below on the claim for compensation for losses in the form of repair costs of the remaining building in which the defendant lost is reversed, and the plaintiffs' claim in that part is dismissed on procedural grounds. The plaintiffs shall bear the total costs of litigation.

4. 04Form of the test

   Elements stated Stated in the decision

   따라서 잔여 건축물 보수비에 관한 손실보상을 받으려는 건축물 소유자는 잔여 건축물 보수비에 관한 손실보상청구의 소를 제기하기 전에 그에 관한 적법한 재결을 거쳐야 한다.

   Unofficial English translation

   Accordingly, an owner of a building who intends to receive compensation for losses in the form of repair costs of the remaining building must undergo a lawful adjudication thereon before filing an action seeking compensation for losses in the form of repair costs of the remaining building.

5. 05Factors

   • 재결절차를 거치지 않은 채 곧바로 사업시행자를 상대로 잔여 건축물 가격감소 또는 보수비에 관한 손실보상을 청구할 수 있는지 여부(소극)
   • 이때 재결절차를 거쳤는지는 보상항목별로 판단해야 하는지 여부(적극)
   • 공익사업을 위한 토지 등의 취득 및 보상에 관한 법률 시행규칙 제35조 제1항에 따른 잔여 건축물 가격감소에 관한 손실보상에 관한 재결만 받은 이후 제기한 잔여 건축물 가격감소에 관한 손실보상청구의 소에서 같은 조 제2항에 따른 잔여 건축물 보수비에 관한 손실보상청구를 구할 수 있는지 여부(소극)

   Unofficial English translation

   • Whether compensation for losses, in the form of a diminution in the value of the remaining building or repair costs, may be claimed directly against the project operator without undergoing the adjudication procedure (negative)

   • Whether, in that case, it must be determined for each item of compensation whether the adjudication procedure has been undergone (affirmative)

   • Whether, in an action seeking compensation for losses in the form of a diminution in the value of the remaining building filed after obtaining only an adjudication on compensation for losses in the form of a diminution in the value of the remaining building under Article 35 (1) of the Enforcement Rule of the Act on Expropriation of Land, etc. for Public Works and Compensation Therefor, a claim for compensation for losses in the form of repair costs of the remaining building under paragraph (2) of the same Article may be asserted (negative)

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2018. 6. 15. 선고 2018두35681 판결, 대법원 2018. 7. 20. 선고 2015두4044 판결 등 참조

   Unofficial English translation

   See, among others, Supreme Court Decision 2018Du35681 decided June 15, 2018; Supreme Court Decision 2015Du4044 decided July 20, 2018, etc.

   Decisions referred to

   [1] 대법원 2018. 5. 15. 선고 2017두41221 판결(공2018상, 1088), 대법원 2018. 6. 15. 선고 2018두35681 판결, 대법원 2018. 7. 20. 선고 2015두4044 판결(공2018하, 1775)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If an objection decision mentions repair costs only in passing without examining them, has the owner completed the decision procedure for that compensation item?

   A later decision on how far an objection application must address repair costs before that item counts as decided would show how the item-by-item test works in practice. Any amendment to Article 35 of the Enforcement Rule, to Articles 34, 50 or 83 to 85 of the Act, or the provisions that succeeded the former Act after 10 August 2021, calls for this entry to be read again.

Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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