[소유권이전등기][공1997.9.15.(42),2716]
Where the State sells the land to another person and completes the registration of transfer of ownership after the termination of the right of repurchase under Article 20 of the Act on Special Measures for Readjustment of Requisitioned Property, and the State sells the land before the right of repurchase is granted under Article 2 of the Addenda of the same Act (amended by December 27, 1993), whether the exercise of the right of repurchase or the right of repurchase under the Addenda of the same Act is allowed (negative)
The right of repurchase recognized under Article 2 of the Addenda of the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993) is limited to the exercise of the right of repurchase under Article 20 of the same Act or the claim for the object equivalent to the sale price is not allowed in such a case, unless there are special circumstances, to allow the State to exercise the right of repurchase under Article 20 of the same Act to re-exercise the right of repurchase mutually, as prescribed by the Addenda of the same Act, to the person whose right of repurchase has already been extinguished due to the lapse of the exclusion period. In a case where the State sells the land to another person before the right of repurchase under Article 20 of the same Act is re-issued and completes the registration of transfer of ownership after the right of repurchase under the Addenda is re-issued, barring any special circumstances.
Article 20 of the Act on Special Measures for Readjustment of Requisitioned Property, and Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993)
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellee)
Plaintiff (Attorney Han-chul et al., Counsel for plaintiff-appellant)
Korea
Seoul High Court Decision 96Na36472 delivered on April 9, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
The right of repurchase recognized under Article 2 of the Addenda of the Act on Special Measures for Readjustment of Requisitioned Property (Act No. 4618, Dec. 27, 1993) is merely a consideration given to a person whose right of repurchase under Article 20 of the same Act has already been extinguished due to the expiration of the exclusion period so that the right of repurchase may be re-exercised, as prescribed by the above Addenda (see Supreme Court Decision 94Da27748, Aug. 25, 1995). In a case where the State sells the land to another person and completes the registration of transfer of ownership after the right of repurchase under Article 20 of the same Addenda is extinguished, unless there are any special circumstances, it is impossible for the State to restore the ownership and transfer it to the person subject to requisition or his/her heir, and in such a case, it shall not be deemed that the right of repurchase under Article 2 of the above Addenda cannot be exercised.
According to the reasoning of the judgment below, the court below rejected the part of the claim for sale payment equivalent to the above purchase price, which was sought by the defendant as the so-called claim for repurchase due to impossibility of performance under Article 2 of the Addenda of the above Act, on the ground that the plaintiff cannot exercise a repurchase right again on December 27, 1993, even if the supplementary part of the above Act was enforced as of December 27, 1993, even if the right of repurchase under Article 20 (1) of the above Act as to the land of this case was extinguished on April 18, 1984, and the defendant sold the part of the land of this case to the Busan Metropolitan City in the price of 600 million won after the expiration of the exclusion period, and as long as the ownership transfer registration was registered in the future at the same time on April 13, 1992, the court below rejected the above part of the claim for repurchase due to the misapprehension of legal principles as to the right of repurchase and the right of repurchase as alleged in the grounds for appeal.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Jin-hun (Presiding Justice)