[1] Whether the payment or deposit of a redemption price equivalent to the redemption price within the redemption period is the duty of prior performance when exercising the repurchase right under Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (affirmative)

[2] In cases where there are circumstances in which it is difficult to specify the exact location and area of the parcel of land subject to redemption, whether payment prior to the expiration of the redemption period or the deposited redemption price falls short of the redemption price of the specific part of land due to the court's appraisal, etc. later, whether payment or deposit of the insufficient redemption price may be made after the expiration of the redemption period (affirmative with qualification), and whether the same applies to cases where the repurchase right holder has failed to pay or deposit a part of the redemption price which

[3] Whether the exercise of the redemptive right is effective in a case where, even if the repurchase price paid in advance by the repurchase right holder or deposited is insufficient to the redemption price for the entire portion of the land for which repurchase is claimed, it is sufficient to view the part of the land for which repurchase is actually eligible (affirmative)

[4] The case holding that the court below erred in the misapprehension of legal principles in rejecting Gap's claim without taking necessary measures, in case where Gap deposited the redemption price corresponding to the ratio of the initial expropriation amount within the redemption period on the ground that part of the land which the Korea Land Corporation accepted to Gap before the annexation was not necessary to use for the business, and requested redemption after Gap deposited the redemption price corresponding to the ratio of the area of the original expropriation amount within the redemption period, the court below should have deliberated on the grounds that Gap made a statement about the reasons why Gap deposited only the amount of the adjudication on expropriation, not the amount of the adjudication on expropriation, and whether the amount of deposit satisfies the requirements for redemption among the land, and whether the amount of deposit exceeds the redemption price,

[1] Repurchase pursuant to Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects is established when the requirements for repurchase occur within the period of repurchase, by unilaterally paying to the project operator the amount equivalent to the compensation paid by the repurchase right holder in advance and expressing his/her intent. Therefore, if the repurchase right is not paid or deposited within the period of repurchase, a claim for registration of transfer of ownership due to repurchase cannot be filed.

[2] Where there are special circumstances in which it is difficult to specify the exact location and area of the parcel of land subject to repurchase, such as cases where a part of the land acquired through consultation or expropriated is no longer necessary, and it is difficult to specify the exact location and area of the parcel of land subject to repurchase, even if the purchase price paid or deposited in advance to the project operator before the expiration of the repurchase period is somewhat short of the purchase price for the specific parcel of land through the court appraisal later, etc., if the identity of the parcel of land subject to repurchase is recognized, it shall be deemed that an additional shortage of the purchase price can be paid or deposited even after the expiration of the repurchase period. Furthermore, such a legal principle is reasonable to view that

[3] Even if the repurchase price paid in advance by the repurchase right holder or deposited by the repurchase right holder falls short of the repurchase price for the entire portion of the land for which the repurchase right holder claims redemption, if sufficient, the repurchase price for the portion of the land for which redemption is actually eligible shall be deemed to have been paid in advance, and it shall not be deemed that the exercise of the repurchase right for the portion of the land for which repurchase is eligible is not effective solely on the ground

[4] The case holding that the court below erred in the misapprehension of legal principles and rejected Gap's claim on the ground that, in case where Gap deposited the redemption price corresponding to the first expropriation ruling amount within the redemption period and thereafter additionally deposited the redemption price for the land increased by specifying the location and area of the land subject to redemption in accordance with the appraisal by the first instance court, on the ground that part of Gap's land which was accepted by the Korea Land Corporation before the annexation was no longer necessary for use for the business, and Gap paid a redemption price for the land which was increased by specifying the location and area of the land subject to redemption according to the appraisal by the first instance court, the court below should have given Gap an opportunity to state his opinion, stating the reasons why Gap deposited the expropriation ruling amount, not the amount of objection, and as long as the deposited amount exceeds the redemption price for part of the land which was requested by Gap, as long as the deposited amount exceeds the redemption price for the part satisfying the redemption requirements, even if Gap's deposit amount was paid for the whole redemption price, it did not take necessary measures, and it did not err in the misapprehension of legal principles.

[1] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [2] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [3] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects / [4] Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Supreme Court Decision 94Da46695 delivered on February 9, 1996 (Gong1996Sang, 876) Supreme Court Decision 2006Da49277 delivered on December 21, 2006 (Gong2007Sang, 188)

Plaintiff (Law Firm Sejong, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Korea Land and Housing Corporation and one other (Law Firm KEL, Attorneys Jin-won et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2010Na33450 decided August 19, 2011

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Repurchase pursuant to Article 91 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (hereinafter “Public Works Act”) is established regardless of the intent of the project operator by unilaterally paying in advance the amount equivalent to the compensation that the repurchase right holder received when the requirements for repurchase occur within the repurchase period, and unilaterally declaring such intent. Therefore, in a case where the repurchase price is not paid or deposited within the repurchase period, the claim for transfer registration of ownership due to repurchase cannot be made (see, e.g., Supreme Court Decisions 94Da4695, Feb. 9, 196; 2006Da49277, Dec. 21, 2006).

However, it is reasonable to view that the principle of trust and good faith applies to cases where a part of the land acquired through consultation or expropriated is no longer necessary and where special circumstances exist, such as where it is difficult to specify the exact location and area of the land subject to repurchase, even though the repurchase price paid in advance to the project implementer before the expiration of the repurchase period or deposited money last falls short of the repurchase price for the specific part of the land through the court’s appraisal, etc. later, if the identity of the land subject to repurchase is recognized, it should be additionally paid or deposited even after the expiration of the repurchase period. Furthermore, even if the repurchase price is insufficient in the purchase price for the entire part of the land subject to repurchase for which the repurchase right holder paid or deposited in advance by the repurchase right holder falls short of the purchase price for the entire part of the land subject to repurchase, it shall be deemed that the repurchase price has been paid in advance, and it shall not be deemed that there is no effect of exercising the repurchase right as to the part subject to repurchase due to insufficient amount compared to the entire land subject to repurchase due to apparent mistake by the repurchase right holder.

Meanwhile, in cases where a party asserts any legal effect and lacks close and omitted part of the requisite facts, the court shall point out the omitted facts and have the obligation to provide the parties with an opportunity to present their arguments by clarifying what the parties did not present their arguments on this point. Therefore, in cases where it is evident that the parties did not prove due to negligence or misunderstanding that they did not present themselves, or where there is no express dispute between the parties on the matter to be at issue, the court shall demand explanation and verification. If the parties intend to determine the propriety of a claim on the ground of the legal point of view that the parties did not know at all or have not anticipated it, the court shall provide the parties an opportunity to state their opinions on such legal point of view, and if the parties intend to decide the propriety of the claim on the grounds of the legal point of view that they did not have known at all or have anticipated it, it is unlawful as it failed to exhaust all necessary deliberations due to the failure to perform their duty of explanation (see, e.g., Supreme Court Decision 2009Da46347, Sept.

2. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that the Plaintiff failed to meet the requirements for the exercise of the right of repurchase on the ground that the Plaintiff’s exercise of the right of repurchase pursuant to Article 91(1) of the Public Works Act was 69,200 won among the expropriation compensation received by the Plaintiff with respect to the land in dispute. The amount deposited by the Plaintiff during the repurchase period is 66,826,50 won, which is 2,374,50 won (3.4%) as 66,826,50 won, and the amount deposited by the Plaintiff during the repurchase period is insufficient, and even if the Plaintiff’s additional deposited 871,650 won after the lapse of the repurchase period is deemed to be identical to the initial deposit, the Plaintiff still failed to meet the requirements for the exercise of the right of repurchase.

3. However, the lower court’s determination is difficult to accept in light of the aforementioned legal doctrine.

A. First, according to the reasoning of the lower judgment, the evidence duly admitted by the lower court and the first instance court, and the record, the following facts are revealed.

(1) The Korea Land Corporation (hereinafter “Defendant Corporation”) which is the telegraphic body of the Defendant Korea Land and Housing Corporation (hereinafter “Defendant Corporation”) requested the Plaintiff, the owner of the land in dispute, etc. to consent to use the instant project, which is the road construction work. However, upon the Plaintiff’s refusal, the Plaintiff deposited KRW 86,680,750 as compensation for the land in dispute on June 25, 199 (hereinafter “the amount of adjudication of expropriation”). Following the Plaintiff’s objection, the Central Land Tribunal made a defect in any objection raised to KRW 88,605,00 (hereinafter “the amount of adjudication of expropriation”), and the Defendant Corporation paid KRW 1,924,250 to the Plaintiff on December 10, 199.

(2) On May 28, 2008, the Plaintiff deposited 66,826,500 won (690/895 x 86,680,750) out of the land in dispute, which is the amount equivalent to the ratio of the size of 690 square meters among the land in dispute, as a deposit by the Defendant Corporation, within the repurchase period under Article 91(1) of the Public Works Act, and requested the Defendant Corporation to repurchase the said 690 square meters around May 29, 2009. The Plaintiff conducted a survey as at the time, and conducted a survey to specify the part outside the urban planning of the land in dispute as 690 square meters, which is not included in the urban planning. However, at the time of requesting the Defendant Corporation to repurchase, the deposit amount was calculated based on the amount of the first adjudication of expropriation, not on the final compensation amount.

(3) On June 17, 2009, the Plaintiff filed the instant lawsuit, and thereafter, as a result of the appraisal conducted in the first instance trial, found the area of the instant land, among the disputing land, which was not used as a road and a bicycle lane, to be 69 square meters, and on December 15, 2009, after the ten-year period for repurchase, the Plaintiff changed the purport of the claim by specifying the location and area of the land subject to repurchase in accordance with the above appraisal result. There is no big difference between the Plaintiff’s exercise of the first right of repurchase and the land of this case based on the appraisal result, as seen above, the form of the land of this case, at the time of the exercise

(4) In the first instance court, the Defendants asserted that most of the instant land falls under the legal surface or drainage of the road and still is necessary to maintain and manage the road (hereinafter “existing issues”), and the Defendants did not claim that the redemption price is insufficient (hereinafter “new issues”). On September 10, 2010, the first instance court accepted the aforementioned claim by the Defendants, and declared that all of the Plaintiff’s claims were dismissed. Accordingly, the lower court did not make any judgment on the new issues.

(5) In the lower court, the Plaintiff and the Defendant made an official defense only on the existing issues, and the Plaintiff submitted additional evidence related thereto. On April 29, 2011, the argument was concluded and resumed, and the Plaintiff deposited KRW 871,650 (86,680,7509/895) as the price for the land size increased due to the modification of the purport of the claim in the first instance trial on June 7, 2011, and submitted the deposit document as evidence. However, the lower court did not point out that the Plaintiff either indicated that the Plaintiff deposited only the redemption price according to the expropriation ruling, not the redemption price, or sought an explanation of the reasons therefor.

(6) On August 19, 201, following the closure of the second oral argument, the lower court sentenced to the dismissal of the Plaintiff’s appeal on August 19, 201. On the ground that the Plaintiff’s claim is rejected in its entirety, the lower court presented only new issues, i.e., the fact that the purchase price deposited by the Plaintiff is insufficient to calculate based on the amount of objection.

B. Examining these facts and the progress of the litigation in light of the legal principles as seen earlier, it is sufficient to view that the part of the above 690 square meters and the land of this case, which the Plaintiff initially requested redemption, are identical, and the Plaintiff’s deposit only the amount pursuant to the expropriation ruling, which is not the amount according to the adjudication of acceptance, seems to have been made by an obvious mistake of the Plaintiff. Moreover, the amount of KRW 1,502,850, which was not deposited due to the said ruling, is merely about 2.17% of the redemption price of the land of this case. Thus, the lower court should have given an opportunity to present the Plaintiff on this point by stating the reasons why the Plaintiff deposited only the amount pursuant to the adjudication of acceptance, which is not the amount due to the adjudication of acceptance. Furthermore, if it is necessary to use only a part of the land for which the Plaintiff requested redemption, which satisfies the requirements for redemption, the lower court should accept a claim for redemption on that part, so long as the amount deposited by the Plaintiff exceeds the redemption price for the entire land of this case.

Nevertheless, without taking such necessary measures as above, the lower court rejected the Plaintiff’s claim on the ground of new issues not dealt with at the first instance court and the lower court, thereby resulting in the Plaintiff’s inception due to a judgment based on a legal point of view unexpected to the Plaintiff. In so doing, the lower court erred by misapprehending the legal doctrine on the exercise of a redemptive right and the court’s duty of explanation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal assigning

4. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)