[1] Whether the entire land, including the increased portion after replotting, is considered as the previous land in the case of a so-called increased land substitution which is larger than the right area to which the premium rate for the previous land is applied after replotting (affirmative)

[2] In a case where a project implementer delays a request for registration of land substitution for a long time without any particular reason, whether the mortgagee of the previous land has the right to apply for a request for registration of land substitution to the project implementer (affirmative)

Cost Star Mutual Savings Bank (former Mutual Savings Bank: Jeonju Mutual Savings Bank)

Jeonju Market (Attorney Jeon Ho-ho, Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2002Nu2160 delivered on March 13, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. According to Article 62(1) of the former Land Readjustment Projects Act (amended by Act No. 5453, Dec. 13, 1997; hereinafter referred to as the "Act"), where a land substitution disposition is publicly announced, the land substitution stipulated in the land substitution plan shall be deemed the previous land from the day following the date of public announcement of the land substitution disposition. Therefore, the legal relationship on the previous land shall be transferred to the former land while maintaining its identity; in cases of so-called increased land whose area of land substitution is larger than the area of the right applied by a reduction rate of the previous land, the effect of deeming the entire land substitution as the previous land is nothing more than the effect of deeming the land (see Supreme Court Decision 97Nu13856, Apr. 14, 1998, etc.). Meanwhile, according to Article 65(2) of the Act, where there is a change in the right to land or buildings in the execution district due to the land substitution and rearrangement project or the land substitution disposition, an administrative agency shall, without delay, commission or request the previous land substitution owner to make a public announcement.

According to the records, even until the time when the defendant does not request a registration of replotting for the following reasons, the plaintiff's application for a request for a registration of replotting, which is the right to collateral security of the instant land substitution, has not been made as a disposition even though the defendant did not request a registration of replotting for the following reasons. In light of the above legal principles, the defendant's omission is in itself illegal.

Since the Defendant did not pay liquidation money for the increased portion of land substitution, the Defendant asserts that there is a justifiable reason for the Defendant’s failure to comply with the request for the registration of land substitution, or that the obligation to pay liquidation money arising from the increase of land substitution and the obligation to request the registration of land substitution of the project implementer are in the simultaneous performance relationship. However, such reason may not be asserted on the ground of avoiding the Plaintiff’s response obligation to the instant request, aside from the fact that it can be asserted within the main text

Although it is inappropriate for the court below to decide on the legitimacy of the defendant's above assertion in this case seeking confirmation of illegality of omission, the conclusion that the defendant's omission was illegal is just, and there is no error in the misapprehension of legal principles as to the scope of the applicant for request for registration of replotting and the standing to be a party to the lawsuit for confirmation

The decisions cited by the Defendant are inappropriate to be invoked in the instant case.

2. Therefore, the appeal is dismissed, and the 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 Park Jae- Jae (Presiding Justice)