Manual of Implementing Land Acquisition and Resettlements for Urban Development of Korea for

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Manual of Implementing Land Acquisition and Resettlements for Urban Development of Korea for

Developing Countries

Jung Hee-nam, Park Joon, Yoo Seon-Jong, Yoo Ki-Yong, Park Seong-Jin, Kim Gi-Seon

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Contributors

Jung Hee-Nam

Senior Research Fellow

Korea Research Institute for Human Settlements Registered Real Property Appraiser, Georgia, USA

Park Joon

Associate Research Fellow

Korea Research Institute for Human Settlements

Yoo Seon-Jong Associate Professor

Department of Real Estate Studies, Konkuk University Registered Real Property Appraiser, Georgia, USA

Yoo Ki-Yong Certified Appraiser Prime Appraisal Co., Ltd

Park Seong-Jin

Director, Aviation Policy Division Former-Director, Land Policy Division

Ministry of Land, Infrastructure and Transport

Kim Gi-Seon

Deputy Director, Public Housing Policy Division Former-Deputy Director, Land Policy Division

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｜ P ｜ R ｜ E ｜ F ｜ A ｜ C ｜ E ｜

Preface

One of the major issues faced by many developing countries is the adoption and improvement of land acquisition and resettlement (LAR) system. Rapid industrialization and urbanization are underway as these developing countries push ahead with economic development plan very enthusiastically. To respond to this trend, the public sector including the government pursues urban development and infrastructure establishment projects. In the process of implementing these projects, the government cannot help but acquire and use individual land. It means that it is unavoidable to adopt compensation system for land expropriation that is followed by the adoption of compensation valuation system. This is because there is constitutional regulation or social demand that requires just compensation for the loss of individual land in most countries.

These developing countries are deeply interested in Korea's LAR system for land expropriation and compensation valuation. Korea has experienced rapid urbanization and industrialization and large-scale urban development projects are being implemented up until recently. Accordingly, LAR system for urban development is running very actively in Korea compared to those in other advanced countries. The LAR system has been developed continuously with the economic and social development in Korea. Korea is a good example to see the institutional foundation and limitation of the LAR system.

In response to the demand for information on Korea's LAR system, we published the compensation system for land expropriation in 2010 and compensation valuation system in 2012 in English. This report is a follow-up research on the operation of the LAR system, i.e., the manual of implementing LAR system.

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It is expected that this report serves as valuable reference for developing countries to develop their own manual of implementing the LAR system.

Many people contributed to the preparation of this report. I'd like to express my gratitude to Director Park Seong-Jin and Deputy Director Kim Gi-Seon of the Ministry of Land, Infrastructure and Transport for collecting and providing data on the operation of LAR system and reviewing the draft of this report.

My special thanks also go to professor Yoo Seon-Jong at Konkuk University and Yoo Ki-Yong, Certified Appraiser at Prime Appraisal Co., Ltd to join this research. Finally I'd like to thank senior research fellow Jung Hee-nam and associate research fellow Park Joon for making their efforts to identify meaningful results with this research project.

August 2013 Kim Kyung-Hwan President Korea Research Institute for Human Settlements

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Preface

I. Introduction 1. Background

2. Purpose and Method

II. Preparation for Public Works

1. Flow of Public Land Acquisition and Compensation Work 2. Preparation for Public Works and Access to Land Owned by

Affected Persons

3. Management of Project District

1) Need for Project District Management 2) Preservation of Current State

3) Establishment and Implementation of Measures to Prevent Speculation for Compensation

4. Basic Survey to Prepare for Project Approval

III. Basic Survey 1. Preparation

1) Principles of Basic Survey 2) Preparation for Basic Survey 3) Access Notice

ⅰ

3 3 6

11 11 15

16 16 18 19

21

27 27 27 28 29

｜ C ｜ O ｜ N ｜ T ｜ E ｜ N ｜ T ｜ S ｜

chapter 1 Introduction

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C ｜ H ｜ A ｜ P ｜ T ｜ E ｜ R ｜ 0 1

Introduction

1. Background

Korea has experienced rapid urbanization and industrialization in short time, which is unprecedented in the world. In the process of pursuing urbanization and industrialization, the demand for urban land soared. Urban land included the land for residential, commercial, industrial and land for infrastructure such as dam, electricity, telephone, gas, road, railroad, school, water supply and drainage. Accordingly, it was unavoidable to develop and supply urban land on a large scale.

As the urban land, industrial land and land for infrastructure cannot be developed and provided by the private sector according to market principle, the public sector including the government had to develop and provide urban land. This was because development and supply of urban land required massive amount of financial resources but the private sector was not able to fiance the fund in the initial stage of economic development. In addition, urban land should not be developed according to the principle of laissez-faire of the market as the development should be executed in line with national territorial policy and economic development plan. In the end, the government and the public sector had to develop and supply the urban land and manage compensation system

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for land expropriation.

Against this backdrop, the government changed Chosun Land Expropriation Decree of 1911 into Land Expropriation Act in Jan. 1962. The Land Expropriation Act supported urban development, improvement and industrial complex establishment pursued actively from 1962 to reorganize industrial structure focusing on light industry and social overhead capital(SOC) including dam, road, port, water supply and drainage that support industrialization and urbanization started from 1963. The government intended to change its focus from light industry to heavy and chemical industry including steel, machine, chemistry, ship building, and nonferrous metal from 1973. Act on Special Cases Concerning the Acquisition of and Compensation for Public Land (Special Compensation Act) was enacted in Dec. 1975 to complete relevant projects early by acquiring land necessary for large-scale national projects including establishment of industrial complex through consultation. Land Expropriation Act(compulsory acquisition) and Special Compensation Act(negotiated acquisition) played an important role as the legal basis regarding acquisition of and compensation for land and property necessary for the execution of public works including road, railroad, land development, port, and airport. These two acts were merged into Act on Acquisition of Land, Etc. for Public Works and Compensation Thereof (hereinafter referred to as "Land Compensation Act") in 2002.¹⁾

One of the issues faced by many developing countries including Asia countries is the adoption and improvement of compensation system. As China pursued reform and opening in 1978, many Asian countries including Vietnam and Mongolia pushed ahead with open-door policy. The primary purpose of the opening was to promote economic development of their own country. As these

1) Jung, H.N. et.al. 2008. Policy Tasks to Improve Compensation System for Mitigation of Conflicts in Public

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countries are eager to implement economic development plan, rapid industrialization is underway. Each country needs to develop many industrial complexes to promote industrialization. The need for installing urban infrastructure as early as possible to support smooth operation of industrial complexes is also growing. In the process of industrialization, rapid urbanization is witnessed as rural population migrate into urban area. Urbanization led to significant shortage of housing in existing cities. As a result, it is unavoidable to pursue large-scale urban development project to construct housing in urban area. It means that recently many countries in Asia face situation similar to that in Korea in the 1960s and 1970s.

Most of the urban development and infrastructure establishment projects are pursued by the public sector including the government. In the process of implementing these projects, the government cannot help but acquire and use individual land. It means that it is unavoidable to adopt compensation system for land expropriation that is followed by the adoption of compensation valuation system. This is because there is constitutional regulation or social demand that requires just compensation for the loss of individual land in most countries.

These Asian countries are deeply interested in Korea's compensation system for land expropriation and compensation valuation system. Korea has experienced rapid urbanization and industrialization and large-scale urban development projects are being implemented up until recently. Accordingly, compensation system for land expropriation is running very actively in Korea compared to that in other advanced countries. The compensation system for land expropriation has been developed continuously with the economic and social development in Korea. Korea is a good example to see the institutional foundation and limitation of the compensation system. Therefor not only Asian countries including China, Vietnam, Mongolia, Indonesia and East Timor as well as many Central Asian

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countries including Uzbekistan and Kyrgyzstan are more and more interested in Korea's compensation system for land expropriation and compensation valuation system.

In response to the demand for information on Korea's compensation system, in 2010 Korea introduced its compensation system for land expropriation in English.²⁾ After that compensation valuation system which is a prerequisite for compensation for loss was released in English in 2012³⁾ After these reports were published, there is a growing demand for manual of implementing the compensation system from policy and practical perspective in developing countries. This study deals with how to run compensation system to satisfy this demand.

2. Purpose and Method

It is important to manage compensation system in a transparent manner.

Compensation system is not only a prerequisite for smooth operation of public works but also a foundation to guarantee the property right of individuals. As such, the Korean government has made and distributed manual of implementing land compensation system based on applicable law on compensation for land expropriation. In the meantime, the party that executed public works made compensation work handbook to handle the process and procedure of compensation in a transparent and fair manner.

The purpose of this report is to introduce the way to run compensation system for land expropriation in Korea to developing countries. The practical work to run compensation system needs to be written reflecting the reality. Considering

2) Jung, H.N. et.al. 2010. Legal and Regulatory Framework for Land Acquisition and Resettlement in the Republic of Korea. ADB.

3) Jung, H.N. et.al. 2012. Legal and Regulatory Framework for Compensation Valuation in the Republic of Korea.

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this, this report is written based on the following three documents: 2010 Manual of Land Compensation for Public Work by the Korean government, 2012 Compensation Work Handbook by Korea Land & Housing Corporation which is a representative public land developer and 2012 Introduction to Compensation Work by Korea Appraisal Board.

This study was conducted jointly with relevant organizations participating in running the compensation system to introduce Korea's system exactly. Relevant organizations include Territorial Land Policy Division of the Ministry of Land, Infrastructure and Transport, Korea Association of Property Appraisers, Korea Appraisal Board, and experts from Korea Land & Housing Corporation which manages compensation work and from academia.

This study is composed of 8 chapters including introduction. After the introduction sector, the preparation for public works are explained in chapter 2. In the chapter, overall flow of compensation work and access to land owned by others are explained. Chapter 3 deals with the basic survey on structures etc. subject to compensation and how to create protocol of land and structures etc. The procedure to prepare for compensation is discussed in chapter 4. This chapter deals with announcement of and public access to compensation plan, selection of appraiser, and establishment of compensation council. Chapter 5 looks at the procedure for compensation consultation dealing with request for compensation consultation, signing a contract for compensation, payment of compensation and confirmation of the consultation. Chapter 6 examines the land expropriation adjudication, which is the next step if compensation consultation fails. This chapter explains the project approval, which is the prerequisite for land expropriation, land expropriation decision making, and compensation deposit. Chapter 7 presents the procedure of raising objection by a landowner who is not satisfied with the decision made, includig raising objection,

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administrative litigation and process of administrative execution by proxy. Chapter 8 introduces other institutions related to compensation system for land expropriation with information on running an agency that deals with compensation system for land expropriation and repurchase rights system.

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3. 연구의 구성

11. 이 연구는 서론을 포함하여 모두 8개 장으로 구성되어 있다. 서론에 이어

제2장은 공익사업의 준비과정을 설명하고 있다. 보상업무의 전체 흐름과 타인 토지 출입절차 등을 다루었다. 제3장은 수용보상의 대상인 보상물건에 대한 기본조사와 토지조서 및 물건조서의 작성방법을 다루고 있다. 제4장은 보상준비 절차를 논의하고 있다. 보상계획의 공고 및 연람, 감정평가업자 선정, 보상협의회 설치 등이 포함되어 있다. 제5장은 협의보상 절차를 다루고 있다. 보상협의 요청과정, 보상계약 체결, 보상금 지금과 협의성립 확인 등을 다루고 있다. 제6장은 협의보상에 실패했을 경우 다음 단계인 수용재결을 다루고 있다. 수용재결의 전제인 사업인정, 수용재결과 보상금 공탁 등을 다루었다. 제7장은 재결에 불복했을 때 토지소유자 등이 이의를 제기할 수 있는 절차를 다루었다. 이의신청과 행정소송, 그리고 행정대집행 과정을 설명하였다. 제8장은 수용보상제도와 관련한 기타 제도를 소개하였다. 수용보상 대행기관제도의 운영과 환매권 제도를 소개하였다.

chapter 2 Preparation for Public

Works

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C ｜ H ｜ A ｜ P ｜ T ｜ E ｜ R ｜ 0 2

Preparation for Public Works

1. Flow of Public Land Acquisition and Compensation Work

Korean constitution guarantees the private property right. Therefore the use or acquisition of private goods including land by the nation is limited to public works as follows: (Article 4, Land Compensation Act).

1. Projects related to national defence and the military

2. Projects related to railway, road, airport, port, parking lot, public garage, freight terminal, cableway, track, stream, bank, dam, canal, water supply, drainage, sewage treatment, wastewater treatment, erosion control work, protection against wind, protection against fire, protection against tide, watertight work, reservoir, irrigation and drainage canal, oil reserve, treatment of oil and waste, electricity, telecommunication, broadcasting, gas and meterological observation which are implemented for the public interest after getting permission, license, approval and designation in accordance with applicable law.

3. Projects related to government office, plant, research institute, testing laboratory, public health or cultural facilities, park, square, playground, market, cemetery, crematorium, slaughter house and other public facilities established by the nation or local government.

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4. Projects related to the construction of school, library, museum and art gallery for the public interest after getting permission, license, approval and designation in accordance with applicable law.

5. Projects related to housing construction or land development executed by the nation, local government, government-invested company and local public enterprise or those designated by the nation or local government for the purpose of lease on their own or transfer.

6. Projects related to passage, bridge, raceway, material yard and other affiliated facilities necessary for the execution of public works mentioned above.

7. Projects related to the development of migration complex including housing and plant necessary for the execution of projects mentioned from 1.12.1 to 1.12.5 above.

8. Projects that can acquire or use land and other goods in accordance with other laws.

A series of procedures should be followed to push ahead with public works.

First, survey should be conducted on the district planned for a project. If the district is confirmed to be the site for public works, the project district should be managed appropriately to prevent any interruption. Then, project approval process should be followed to determine whether the project is public works that can acquire properties including land. At the same time compensation plan should be established to acquire land smoothly and award compensation in a systematic manner. If compensation consultation fails to reach, the land for project should be acquired through land expropriation adjudication process. The period required to complete payment and deposit of compensation is different depending on the characteristics of project district. The table below broadly shows the workflow of public land acquisition and compensation.

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Confirm public project plan Receive request for land purchase

Prepare for public works - Carry permission, notification and badge of access - Measure and survey on the affected properties Create the protocol of land

and structures

- Created by each owner

- Sign or stamp by owner or relevant person of property including land

Announce and notify compensation plan

- Publish compensation plan on daily newspaper distributed to the whole nation

- Notify the plan to owner or relevant person - Available to the public for more than 14 days

※ Announcement procedure is omitted in case where the number of landowner and relevant person is less than 20.

Compensation consultation council (established in relevant city, county and district)

Valuation and determine compensation amount

- More than 3 appraisers (Relevant local government, landowner & project operator can recommend an appraiser)

- Reevaluate when the highest appraised value is more than 1.1 times higher than the lowest appraised value.

Consult compensation - More than 30 days of consultation period

- Agreed : Register the transfer of ownership → Pay compensation amount - Not agreed : Expropriate land

Project Approval Road zoning decision notice, stream improvement project execution notice, development plan approval notice(land category notice)

Temporary consultation(at the request of owner and others) Expropriation Adjudication

Objection to Expropriation Adjudication Administrative litigation

<Table 2-1> Compensation Workflow

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<Table 2-2> Major Compensation Procedures and Time Required

Procedure Major Contents Time

Required Remarks Project

preparation Feasibility study, Project Approval, etc.

Land division Survey for division of land, organization of land register, project(road, stream) approval notice

3 to 4 months Basic Survey Creation of protocol of land and structures etc. 2 to 3 months

Compensation Plan

Announcement in major daily newspaper(for more than 14 days) Individual notice to owner and relevant people

(Provided that the number of owner and relevant people is more than 21)

1.5 months

Considering the time to recommend appraiser by owners, etc.

Valuation 3 appraisers (recommended by relevant government, landowner, project

operator) 1 month

Consultation Request for estimation of compensation amount, consultation and compensation payment

2 months Agreement Transfer of ownership registration → payment of compensation amount 15 to 20

days Application for

expropriation

Application for expropriation adjudication if consultation fails(writing documents including report on consultation) 1 month Expropriation

adjudication

Central Land Expropriation Committee investigates, review and adjudicates.

4 to 6 months

Payment of amount adjudicated

Amount decided is paid at the request of an owner and if the owner does not claim the amount, the money is deposited in relevant district court(or its support center)

(District court sends deposit notice to an owner),

The expropriation adjudication becomes ineffective after effective expropriation date(registration date of “transfer of ownership to state”) if the compensation amount adjudicated during adjudication process is not deposited.

1.5 months

The deposit is stored for 10 years

Objection Objection should be raised within 30 days after the receipt of statement on adjudication.

Within 30 days adjudication

on complaints

Central Land expropriation committee inspects, reviews and makes

a decision on objections raised. 3 months

Payment of amount decided

Increased amount decided is paid at the request of owner if the owner does not claim the amount, the money is deposited in relevant district court(or its support center)

Within a month Administrative

litigation Filing a litigation in case of objection to land expropriation adjudication Within 60 days

Based on delivery date Filing a litigation in case of objection to decision on complaints Within

30 days ”

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Application for access (Article 9.1 of the Act)

- Notification of types of project, land to be accessed and period - Land developer → Mayor, head of county and district

↓

Permission (Mayor, head of county and district) (Article 9.1 of the Act)

If the nation, city or province is a project operator, permission process is replaced by notification(in accordance with Article 9.1 of the Act)

※ Permission of access is the administrative measures to place the right to public use. Therefore, permission decision is subject to appeal litigation (raising administrative appeals and administrative litigation)

Announcement and notification of permission and notice (Article 9.2 of the Act

- Notification of types of project, land to be accessed and period - Mayor, head of county and district → landowner

↓ Notification of access (Article 10.1 of the Act)

- Notification of time and venue 5 days before the date of access - Project operator →Mayor, head of county and district

↓

Announcement and notification of access to land (Article 10.2 of the Act)

Mayor, head of county and district→ landowner

↓

2. Preparation for Public Works and Access to Land Owned by Affected Persons

Preparation for public works refers to a series of activities including identification of spatial division and property to be expropriated and confirmation of property subject to compensation at the implementation planning stage (Article 9 to 13 of Land Compensation Act). If access to land owned by others is necessary to conduct measurement and geographical survey to prepare for public works, applicable rules should be followed to prevent unnecessary dispute with landowners, etc.

<Table 2-3> Access to Land Diagram

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↓ Measurement and survey - Article 10.2(Notification of

access): protection of privacy - Article 9.3 to 9.5(Permission

of access): protection of property rights of the people - Article 13(Possession of

badge)

ㆍ Access to land surrounded by residential area, boundary or wall of the owner is not allowed before sunrise or after sunset without approval from the landowner(protection of privacy).

ㆍ Compensation for the loss occurred from measurement and survey of the land should be paid.

ㆍ One cannot claim loss after 1 year from the recognition of the loss or after 3 years from the loss occurred(protection of property rights of the people)

- Nation, local governments : holding badge or civil service ID card - General project operator : holding Access Permission Card and badge

3. Management of Project District

1) Need for Project District Management

Illegal activities including construction of unauthorized building and change of land shape and quality-and-quality may be conducted expecting to receive resettlement measures and speculation for compensation when proposed district for public work is designated and announced. Therefore, project district management measures should be taken including the employment of on-site supervisor and installation of standing signboard to limit activities to pursue project smoothly and pay just compensation(Guideline for the Management of Proposed District(Mar. 2013).

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Process Major Activity Management Method

Step1

- Securing aerial photo - Securing access to land - Filming the site

- (Securing aerial photo) Aerial photo of the day when proposed district is announced and designated - (Securing access to land) Securing access to land

to have access to proposed site for the purpose of site management

- (Filming the site) Photographing the proposed site to use the photo as an evidence of speculation Preservation

of the current state of the

district

Step2

- Employment of on-site supervisor

- Installation of standing signboard to limit speculation

- Cooperation with local government - Presentation in front of

landowners, etc.

- (Employment of on-site supervisor) Employment of on-site supervisor to prevent and crack down on speculation

- (Installation of standing signboard to limit speculation) Installation of standing signboard on every major corner within the proposed district to prevent speculation

- (Cooperation with local government) Maintaining close cooperative relationship with local government which has the authority to permit development activity and restore activity without permission to original state - (Presentation in front of landowners, etc.) Holding

a presentation in front of landowners, etc. shortly after the designation of proposed district to identify public opinion and relieve anxiety of landowners, etc.

providing information including compensation criteria and asking for cooperation to limit illegal activities Prevention of

speculation for compensation

Step3

- Request for restoration - Notification to local

government

- Request for restoration to those who conducted illegal activities. It should be noted that claim can be raised against him or notification can be given to relevant organization if he does not accept the request.

- In case of nonacceptance, claim can be raised and the issue is notified to relevant organization to take measures for restoration.

Restoration

<Table 2-4> Overview of the Management of proposed District

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2) Preservation of Current State

(1) Securing Aerial Photo

Aerial photo should be secured to identify construction of building, planting period of crops and fruits and use the photo for investigation on land and property and legal basis(Guideline for the Management of proposed Area(Mar.2010)).

Filming should be made two times on the date of announcement on proposed site and disclosure date of project approval.

(2) Filming the Site

Filming video(photo) should be made immediately after the public announcement(notice) of the plan on public works and their implementation along with aerial photo. In particular, filming should focus on inside the greenhouse, which cannot be judged clearly only with aerial photo to use the data as the basis for judging illegal activities in the future.

<Table 2-5> Effective Date of Development Activity Limitation Regulations Classification Application of Development

Activity Limitation Regulations Applicable Act Land development Date of public announcement on the

designation of proposed district.

Article 6.1 of Residential Site Development Promotion Act

Bogeumjari (rental) housing

district

Date of public announcement on the designation of housing district

Article 11 of Special Act on the Construction of Bogeumjari (Rental) Housing, Etc.

Industrial complex Date of notice on the designation of industrial complex

Article 12.1 of Industrial Site and Development Act

Logistics complex Date of notice on the designation of logistics complex

Article 25.1 of Act on the Development and Management of Logistics Facilities Urban

development

Date of public announcement on the designation of urban development zone

Article 9.5 of Urban Development Act

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(3) Cooperation with Local Government

Local government should make a decision on the permission of application for construction of building and change of land shape and qualityand quality within proposed district after listening to the opinion of project operator. Local government should respond that construction of a building is not possible to prevent social and economic loss from the removal of installed facilities in advance and execute public works smoothly after receiving application for construction of a building and change of land shape and quality-and-quality within proposed district. If illegal construction and change of land shape and quality-and-quality activities were already conducted, the local government should take measures for restoration(Article 6.1 and 6.4 of Residential Site Development Promotion Act).

(4) Presentation in Front of Landowners, etc.

Presentation in front of landowners, etc. should be held shortly after(2 months) the designation of proposed district to identify public opinion and relive anxiety of landowners, etc. providing information on project schedule and compensation criteria and asking for cooperation to limit illegal activities.

3) Establishment and Implementation of Measures to Prevent Speculation for Compensation

Illegal activities aiming to receive compensation should be prevented and cracked down on in accordance with Guideline for the Management of Proposed District after the announcement or notice of plan for public works and their implementation(Measures to Prevent Speculation for Compensation (Nov. 2009)).

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(1) Strengthening the Criteria to Establish Living Support Measures Specification of residence requirement for those subject to supply of land for living support supply : Residence requirement should be specified for industries with the characteristics that require residence in that area including farmers like those growing vegetable with facilities, rancher, and those in flowering business.

Strengthening the requirement for facility held by rancher: The area of facility should be specified in case where a rancher is not subject to livestock industry registration in accordance with Livestock Industry Act or a rancher is not registered(facility on area of wider than 200㎡ including livestock breeding facilities and playground). Eligible facility held by apiarist is limited to fixed apiary(50 group of bees).

Elimination of any new businessmen after the base date by clarifying the starting date of business: Business start date is confirmed with the application date for business registration. If there is no business registration certificate or actual business started before the date written on business registration certificate or the place where business started is different from the relevant district, objective evidence including sales record and contract on lease replace business registration certificate.

(2) Strengthening the Monitoring on Speculation

Reward system for landowners, etc. who report speculation should be run and the system to designate local landowners, etc. as honorary squad to crack down on speculation should be implemented.

(3) Making Management of Project District through Expert Security Agency Mandatory

Using security service by expert agency should be mandatory for project districts where speculation is active or concerns over speculation is high including district

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for new city or Bogeumjari (public rental) housing district.

(4) Installation of Image Information Processing Equipment

Image information processing equipment(CCTV or network camera) should be installed in major corner of the district and in the area where speculation for compensation is expected when public announcement on proposed area is made.

(5) Installation of Bulletin Board to Limit Activities

Standing signboard should be installed in major corner for the management of proposed district to prevent speculation for compensation asking for cooperation at the presentation in front of landowners, etc. and representative meeting.

4. Basic Survey to Prepare for Project Approval

If the acquisition of land required to execute public works is not possible through consultation, the land should be acquired following the procedure for land expropriation. The first step in the expropriation procedures is project approval. Project approval is administrative activity to give land expropriation authority to project operator by taking a series of steps stipulated in applicable laws. In preparation for this, cadastral map should be issued or current state map(aerial photo) should be created.

(1) Issuance of Cadastral Map

One should visit relevant office(city, county, district) that governs the land to get cadastral serial map and cadastral map(line) including the whole project district. For the area where computerization of cadastral map is completed, survey

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should be conducted not to miss the land lot number included in project district through electronic file of cadastral map(drawing). If necessary, one can indicate the outline of project district to ask the creation of comprehensive cadastral map(copy of cadastral map) to Korea Cadastral Corporation. Instruction and supervision are required not to miss the land lot on cadastral map(forest land map) made on a scale of 1 to 1200 and not to make a mistake regarding scale upon creating new map based on forest land map.

(2) Issuance of Register including Land Register

Land register and a certified copy of the register regarding the land to be included should be issued. Location, lot number, land category, area, landowner and relevant people should be confirmed by looking at land register. Through these documents, land use constraints under public act including the purpose of the land should be checked.

(3) Creation of Current State Map and Aerial Photo

To create current state map of project district, one can ask the production of the map to Korea Cadastral Corporation or ask company which can create the map along with aerial photo. Current state map is usually the cadastral current status map which shows cadastral records. It is useful to receive output as well as soft copy of the drawing to modify record and print drawing continuously in the future.

(4) Writing Protocol of Land and Goods Necessary for the Application for Business Approval

Protocol of land and goods should be created based on contents in public data including cadastral record and register(location of land, lot number, land

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category, area, landowner and relevant people) as application for business approval comes before compensation work. Protocol of land for business approval cannot be used for compensation work as detailed information including current state of land use necessary for compensation work is not sufficient. Protocol of land and goods necessary for compensation after identifying detailed information by conducting on-site survey when business approval is obtained.

Details of the land required for public works are announced along with notification of project approval in official gazette. Details of goods, however, don't need to be announced. Project approval does not take effect if announced lot number is incorrect or announced land area is smaller than that to be acquired regarding announcement for the land does not exist. Therefore it is important to conduct a survey property and write correct information.

(5) State/Public Land to be Acquired for Free or at Cost

State/public land included in project district is classified by acquisition type.

State/public land to be acquired at cost should be obtained in accordance with Land Compensation Act as private land. State/public land to be acquired for free is mostly land for public facility like road. In this case, the land for public facility is transferred from project operator to the nation and local government for free after installing public facilities and existing public facility belong to project operator.

State/public land subject to reversion for free can be identified correctly with survey on the current state of land use. If there is not sufficient survey information on the site, it is determined whether the land was acquired for free or at cost referencing the details of cadastral record of state/public land. The land to be given for free is confirmed not in the stage of land development planning but in the process of approval for detailed(district) planning. Therefore, current state

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should be surveyed later to reflect the actual state that can be announced in notice of change in business approval.

(6) Confirmation of Land on the Boundary of Project District

Partial measurement can be conducted on the land to be included partially in project district, which is located in the boundary of district, after getting business approval. Before project approval, the area to be included should be confirmed by conducting cadastral measurement. After getting project approval, the area should be finally confirmed by partial measurement based on outcome of current state measurement.

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chapter 3 Basic Survey

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C ｜ H ｜ A ｜ P ｜ T ｜ E ｜ R ｜ 0 3

Basic Survey

1. Preparation

Project operator should conduct in-depth survey on the current state of land, those who have the right to the land and goods on the land located in proposed district. This survey becomes the basis for valuation, consultation compensation and land expropriation. Therefore acquisition procedure can be delayed with civil complaints and insincere consultation in the process of land expropriation.

1) Principles of Basic Survey

(1) Principle of Survey on Current State

Compensation amount should be based on valuation on objective condition including practical state of land use and method to use the land even though there is land category, purpose, structure and area in cadastral record. Therefore, survey on the items subject to compensation should be based on survey on current state.

(2) Principle of Individual Survey

Survey on the item subject to compensation should be conducted for each

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object like land, building, standing tree, crop and right.

(3) Principle of Separate Survey

If one object like land and building has more than 1 land category, purpose and structure with different values or the same object has more than 1 owner to be compensated, separate survey should be conducted.

2) Preparation for Basic Survey

(1) Getting Familiar with Applicable Laws

One should be familiar with applicable laws including Land Compensation Act, National Land Planning and Utilization Act, tax laws including Local Tax Act and other relevant act regarding compensation to respond sincerely to questions raised by people including landowner upon survey on land and goods.

(2) Establishment of Survey Plan

Survey plan should be established considering the area of district, distribution and quantity of goods, and characteristics of landowners, etc.. The outline of survey and survey criteria is as follows:

1. Detailed division of survey zone and the number of people for each zone 2. Survey period and survey items for each day

3. Goods to be surveyed and budget

4. Common survey method and criteria for each object to be surveyed.

It is effective to conduct a survey in cooperation with landowners, etc. like head of the village or member of landowners, etc.' committee, who are familiar with condition of project district if there are many goods including house. The

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items necessary for conducting basic survey include;

1. Drawing : site map and cadastral map

2. Survey form and ink pad(to check participation)

3. Measuring tool : basic tool for digital survey(laser distance meters, mobile PC), ruler(5m, 100m), set square, scale, etc.

4. Filming tool : camera, whiteboard(blackboard), aqueous marker, etc.

3) Access Notice

If one wants to have access to the land owned by others, notification on the date and place of access should be given to mayor 5 days before the date one wants to have access to the land. If one wants to access to the land owned by others, he should possess identification card and show the card at the request of owner or occupant in accordance with Article 13 of Land Compensation Act.

4) Internal Training

The survey result can lose its fairness if survey criteria is different depending on the characteristics and values held by an inspector. Therefore, training on survey criteria, measures to prevent civil claim, method to access houses to be surveyed and how to fill in the survey form should be provided to inspectors.

It is necessary to unify survey method and criteria after having discussion by visiting the site jointly selecting one sample(example) by the district(by function) if issues are too complicated to be judged. In case of goods, the object to be surveyed should be the same. Civil claim can be raised if some items to be surveyed are missing due to differences in survey object by each inspector.

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5) Presentation(in front of landowners, etc.)

Project should be executed smoothly by holding presentation(in front of landowners, etc.) on the project to improve the understanding of landowners, etc. and create cooperative atmosphere before the launch of the project. Handbook on compensation should be made and distributed to respond to questions by landowners, etc. regarding compensation procedure in advance.

6) Document Issuance (Article 8 of Land Compensation Act, Article 6 of Enforcement Decree of Land Compensation Act)

Project operator can ask the issuance of all documents required for the execution of public works after writing the purpose of the documents to the nation or local government for free. If there is a need for confirmation on cadastral records, compensation problems can be prevented by checking relevant documents with early issuance of paper. If one wants to use computerized document related to register and cadastral record, he can save the time and cost required for individual issuance or system input by using "Application for the approval for use of computerized data on register and cadastral record" system.

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<Table 3-1> Documents to be Issued and Information to be Checked

Object to be

Surveyed Documents to be Issued Information to be Checked Authorized

building

Building register, certified copy of building register, temporary building installation reporting(permission) register

Current state and general relationship of rights and duties Unauthorized

building

Taxation ledger, unauthorized building (crackdown) register, numerical map produced before Jan. 24, 1989

Building construction period(linked to current state of land and land category)

Plant Plant establishment register Identification of person running the plant

Standing tree Standing tree register, certified copy of standing tree

Current state and owner of standing tree, identification of other rights

Grave Grave register Identification of grave current state

and relatives

Farmer Farmland register Identification of farmer

Resident copy of resident registration and resident

registration abstract Identification of resident and tenant

2. Survey on Land

1) Survey on Ledger (Recorded Document)

(1) Confirmation of Land Details in Project District

Earth system should be confirmed on site map and land lot should be numbered.

If the earth system division survey finds that actual land area is larger than announced area or land lot is missing, announcement on the approval for earth system division survey and project plan change should be made before application for adjudication to prevent any disruption to application for expropriation adjudication.

(2) Confirmation of Special Zoning

As restrictions on activity under public law including specific use area zoning

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in accordance with National Land Planning and Utilization Act have significant impact on the formation of land price, one should check whether special zoning and restriction on activity are established for the area by checking confirmation note of land utilization plan. The land restricted under the public law should be estimated as it is if the restriction falls under the category of general restriction and if the restriction is individual restriction(business restriction), the valuation should be made as if there is no restriction. Therefore, type or restriction should be surveyed specifically. In the mean time, one should be cautious about the progress on the use of land including waste landfill in consultation with local government.

(3) Writing Detailed Land Information Report

Detailed land information report should be written by checking land category and area for each land lot with land and forest register and confirming landowner and share of public land using certified copy of the register. There should be no error in writing the report as the report serve as a basis for consultation compensation and expropriation adjudication.

2) Survey on Actual State

Even though there is land category stipulated in cadastral record, the land to be acquired should be estimated based on actual state of land use. Therefore actual state report on land where state in cadastral record and actual state are different to ask Korea Cadastral Corporation to conduct a survey on actual state. The procedures below should be followed.

1. Check the actual state of land use and actual area of the land to be included in project district for each land lot and confirm the data with land category

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and area written in cadastral record.

2. Judgement should be made whether the current land use is temporary or not as temporary use of the land is not considered upon survey on actual state of land use. In principle, land survey should be conducted by the land lot, but if continuous land lots are used for the same purpose, survey can be conducted simultaneously.

3. If the land category in cadastral record and actual use are different, relevant report should be written to check whether the local government applied for approval for the change of land shape and qualityand quality.

4. One should ask Korea Cadastral Corporation to conduct a survey on actual state based on the inquiry result in local government. In case of the survey on actual state, inspector should be actively involved in the survey by participating and explaining zoning criteria for each land use state and characteristics of compensation work fully.

5. If the outcome of the current state survey is submitted, final confirmation on land lot number and current area should be made.

<Table 3-2> Classification of Land Category under Cadastral Act

Land Category Land Category Land Category

Dry Paddy River School Site

Rice Paddy Bank Historical Site

Orchard Ditch Marsh

Pasture Grave Yard Water Reservoir

Forest Field Hot Spring Park

Land for Religious Use Salt Pond Sports Facilities

Road Building Site Recreation Area

Railway Factory Site Miscellaneous Area

Parking Lot Gas Station Site Warehouse Site

Fish Farm

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(1) Site Survey on Unauthorized Building

Land on which unauthorized building is constructed refers to the land on which building supposed to be constructed after getting permission or reporting on the building is constructed without permission or reporting under applicable laws including Building Act(Article 24 of Enforcement Rule of the Land Compensation Act). Land Compensation Act recognizes the legality of unauthorized building as of Jan. 24 in 1989 and unauthorized building constructed after the date are excluded from compensation scope. The criteria applied to the calculation of building site is presented below.

A. Method to Check the Construction Timing of Unauthorized Building Construction date written in the register for unauthorized building is the basis to determine the construction timing of the unauthorized building. If there is no register for unauthorized building, following methods should be used.

1. Aerial map or photo recorded shortly before Jan. 24, 1989 : Securing the data by asking the data to National Geographic Information Institute and local government through official letter.

2. Fact that person has stayed in the building from the date before Jan. 24, 1989 with resident registration: Regardless of the current resident's stay from the date before Jan. 24, 1989 the basis for judgement if the first transfer date of the person in the building written in resident registration card.

3. Building included in taxation register : Check the information in taxation register.

4. In case where there is objective evidence that the building had existed before Jan. 24, 1989 : One should investigate and check document like electricity bill, telephone bill, water bill and utility bill receipt and picture of the building and ask relevant authority to inquire relevant information with attachment

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of the list of land to be inquired through official letter, if necessary.

B. Criteria for the Calculation of the Site Area including the Land where Unauthorized Building is Located.

Criteria for the calculation of the site area including the land where unauthorized building is located are as follows.

1. The calculation is based on the land at a minimum which is necessary for the use and making profit from the unauthorized building and the land which cannot be separable from the purpose of the building.

2. Buildings attached to the unauthorized building are included.

3. Corridor, open-air storage, yard, greenhouse, tent, container, material storage and parking lot, which are not inseparable from unauthorized building are not included in the site as it is land for which illegal change of land shape and qualitywas made.

The calculation for the site area including unauthorized building should follow following methods based on the criteria mentioned above.

1. Building for residence : In principle, site area is calculated including the horizontal project area of the eaves belong to the unauthorized building.

Exceptionally, if the use of the land as the site for building is recognized objectively, that area is included. For example, the part which cannot be separable from the building for the purpose of residence like main building, attached building, small flower garden and yard surrounded by “ㄷ“ or

“ㄴ“ shape house is included in the site of unauthorized building.

2. Factory site : The horizontal project area of the eaves belong to the unauthorized building(including attached building) is calculated as site area and land category is determined as factory site. Attached buildings including

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dormitory, cafeteria, office, and storage are determined as factory site not considering them as the facility for individual purpose.

3. Detached livestock shed, etc. : For buildings detached from house like livestock shed, the horizontal project area of eaves belong to livestock shed without permission is considered as site area and land category is selected as pasture

4. Other buildings : Judgement should be made in accordance with criteria mentioned above.

C. Other Considerations

Attention should be paid to the following matters.

1. In case of calculation of the site where unauthorized buildings constructed before Jan. 24, 1989, farmland preservation contribution(alternative forest resources formation fund) and the expense required for the change of land category should be reflected in valuation.

2. Even though the unauthorized building was constructed before Jan. 24, 1989 the building cannot be recognized as legal one in case of use change after Jan. 24, 1989. Therefore, valuation and compensation should be made considering the land use state at the timing of change. For example, if the use of land has been changed from greenhouse to building for residence to livestock shed to building for residence, decision should be made by inspecting and confirming comprehensive data including aerial photo, the timing of resident registration for the building and other data.

3. In case of using building permitted before Jan. 24, 1989 for other use, or if the use of land is changed after Jan. 24, 1989, valuation and compensation should be made based on the permitted land use . For example, if the purpose of the building has been changed from livestock shed to building

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for residence, neighborhood shopping center to factory, decision should be made by inspecting and confirming comprehensive data including aerial photo, the timing of resident registration for the building and other data.

4. In case of using building permitted after Jan. 24, 1989, land category should be determined by investigating and confirming legality of land use change in accordance with Building Act. If the land use change is temporary or the change is illegal, valuation and compensation should be made based on permitted land use purpose.

5. If different land categories exist in one land lot, survey on the actual state should be conducted to reflect the state to valuation and preparation for expropriation adjudication should be made. However, if the different land categories in one land lot exist temporarily or extremely small part of the land is used for different use, land category can be determined based on major land use.

(2) Survey on the Land where Illegal Change of land shape and quality was Made

Land where illegal change of land shape and quality was made refers to the land, for which change of land shape and quality should be made after getting permission or reporting of the change under applicable laws including National Land Planning and Utilization Act, was changed without getting permission or reporting the change(Article 24 of Enforcement Rule of the Land Compensation Act). For the land for which change of land shape and quality was made illegally, valuation should be made based on the land use state at the timing of change, not on the actual land use state. Therefore legality of change of land shape and quality should be checked and judgement should be made according to individual law. If applicable law allows the change of land shape and quality