This study aims to systematically analyze the types and structural framework of public law party litigation arising under the Land Compensation Act, to identify the problems inherent in the current operation of such litigation and propose institutiona...
This study aims to systematically analyze the types and structural framework of public law party litigation arising under the Land Compensation Act, to identify the problems inherent in the current operation of such litigation and propose institutional improvements, and, furthermore, to present concrete alternatives in connection with the existing discourse advocating the expansion and revitalization of public law party litigation within the field of land compensation law. Although previous scholarship has accumulated in individual areas—including public law party litigation in general, tax disputes, public law declaratory actions, public law contractual relationships, public law actions for restoration to the original state, public procurement, formal party litigation concerning the exhaustion of administrative remedies and compensation adjustment under the Land Compensation Act, and public law actions for restitution of unjust enrichment and damages—there has been little comprehensive research that systematically classifies and analyzes the overall types and procedural structure of public law party litigation as operated within the field of land compensation law. This study was undertaken in recognition of that gap.
The study first examines the legal and systematic status of public law party litigation. Compared with ordinary civil litigation, public law party litigation possesses significant procedural advantages, including ex officio fact-finding, procedural flexibility, the scope of res judicata, broader opportunities for intervention by interested parties, and greater flexibility in the amendment and joinder of claims. Compared with administrative appeals litigation, it also offers important advantages by enabling comprehensive resolution of disputes through a single proceeding and by allowing provisional judicial protection through provisional attachment and preliminary injunctions. These advantages are equally applicable to public law party litigation under the Land Compensation Act. In litigation concerning land compensation before the administrative courts, formal party litigation seeking an increase or reduction of compensation and substantive party litigation concerning the payment of resettlement benefits or the determination of eligibility for compensation constitute a substantial proportion of all cases, exceeding actions seeking revocation or confirmation of invalidity of rulings rendered by the Land Expropriation Committee. In addition, disputes concerning resettlement measures, repurchase rights, and actions seeking the surrender of land and buildings located within public project areas, which effectively constitute compulsory relocation procedures, have become increasingly diverse and complex. These developments demonstrate the growing importance of public law party litigation under the Land Compensation Act and underscore the necessity of in-depth research concerning its institutional problems and possible reforms. Accordingly, the subject constitutes an appropriate focal point for discussing the expansion and revitalization of public law party litigation.
The Land Compensation Act actively operates a distinctive form of public law party litigation known as formal party litigation. Where a party challenges only the amount of compensation determined by the Land Expropriation Committee, rather than the legality of the ruling itself, the compensated person files an action against the project operator seeking an increase in compensation, while the project operator files an action against the compensated person seeking a reduction in compensation. Article 85 of the Land Compensation Act expressly provides for this form of litigation. Apart from Articles 190 and 191 of the Patent Act governing compensation and remuneration disputes, the Land Compensation Act is virtually the only individual statute that expressly establishes and actively operates formal party litigation, thereby possessing a unique institutional character. Losses compensable under the Act may be divided into two categories: losses relating to land, buildings, businesses, and similar interests, for which only the project operator may initiate adjudication proceedings; and losses arising during the implementation of public projects, for which the injured party may directly apply for adjudication. Despite the distinctive characteristics of the latter category with respect to the nature of the losses, methods of proof, and manner of occurrence, the current legal framework merely applies, without differentiation, Articles 9(5) through 9(7) of the Land Compensation Act governing losses caused by entry onto another person's land. This study concludes that such an approach requires institutional reform.
Claims for the payment of resettlement subsidies and similar benefits constitute substantive public law party litigation because the claimant may directly seek payment from the project operator without first obtaining an adjudication. However, the Korean courts have held that where the project operator has voluntarily sought adjudication regarding such compensation items, any subsequent challenge must proceed as formal party litigation contesting the adjudication. Consequently, the same compensation item may be subject either to formal or substantive party litigation depending solely upon whether the project operator initiated adjudication proceedings. This inconsistency represents a significant structural weakness in the current system. Accordingly, this study proposes that, in the long term, resettlement subsidies and related compensation items should also be incorporated into the scope of adjudication, thereby unifying the procedural framework under formal party litigation and enhancing procedural consistency and legal certainty.
Furthermore, disputes concerning repurchase rights, confirmation of beneficiary status under resettlement measures, and actions by project operators seeking the surrender of land or buildings are all fundamentally based upon public law rights and obligations, yet they are currently resolved through ordinary civil litigation or administrative appeals litigation. This study argues that these categories of disputes should be carefully examined with a view either to incorporating them within the scope of adjudication or to converting them into public law party litigation. Although both academic scholarship and judicial decisions generally acknowledge that public law party litigation provides more effective judicial protection than either administrative appeals litigation or civil litigation in terms of procedure and adjudication, substantial disagreement remains regarding the specific categories of disputes that should properly fall within its scope. Accordingly, the appropriate scope of public law party litigation under the Land Compensation Act should be systematically established through comprehensive consideration of the legal relationships involved and the effectiveness of judicial remedies.
Focusing on the distinctive and highly specialized forms of public law party litigation arising under the Land Compensation Act, this study clarifies the criteria for distinguishing formal party litigation from substantive party litigation, proposes institutional reforms for improving the existing litigation system, identifies categories of disputes that should be unified under formal party litigation, and presents additional categories that should be converted into public law party litigation. Through these proposals, this study seeks to contribute to the realization of just compensation for persons whose land or other property has been compulsorily acquired or who have suffered various forms of loss as a result of public projects, while establishing a more efficient, coherent, and effective system of judicial protection.