Scope and exceptions to acceptance Adjudication Prior to Compensation

Abstract

The Supreme Court has ruled that compensation for land acquisition and for public projects under the Act on Acquisition and Compensation of Land for Public Works Projects must be adjudicated by the Land Tribunal. It has been determined that compensation claimants cannot directly claim compensation from the project operator without following the adjudication process. This rationale, known as the principle of “adjudication prior to compensation” has been gradually extended to areas such as business compensation, agricultural compensation, as well as compensation for livelihoods. At the same time, the Supreme Court has indicated that for compensation items such as relocation expenses and moving costs within the category of compensation for livelihoods, the principle of adjudication prior to compensation does not apply. This implies that affected parties can directly claim compensation through individual lawsuits without waiting for the Land Tribunal's adjudication, or the project operator can proceed with compensation according to the Land Compensation Act. When comparing the legal nature of compensation categories such as business compensation and agricultural compensation, where the principle of adjudication prior to compensation applies, with categories such as relocation expenses and moving costs, it becomes evident that they all fall under indirect compensation for livelihoods. There is little relevance between the application of the principle of reconsideration prior to compensation and the issue of whether appraisal is required for compensation. This clarifies that the scope of application of the principle of adjudication prior to compensation is determined not by the legal nature or characteristics of compensation categories, but by the Supreme Court's judgment aimed at resolving fundamental inconsistencies between the land compensation system and the practice to achieve concrete validity. Based on the Supreme Court's principle of adjudication prior to compensation, to unify the compensation process for all land compensation categories, including items such as relocation expenses, it becomes necessary to interpret the scope of “adjudication” more expansively within the principle of adjudication prior to compensation. This may involve interpreting Article 50, Paragraph 1, Subparagraph 2 of the Land Compensation Act to allow the Land Tribunal to make increased adjudication for “loss compensation,” even without individual applications for adjudication, to account for items such as relocation expenses. However, this would still necessitate changing existing practical norms and procedures. Considering these points, the Supreme Court's principle of adjudication prior to compensation appears to be applicable only in specific circumstances, and extending it to the entire land compensation process seems impractical.