The method of exercising a redemptive right under Article 91 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and whether a project operator may assert a defense of prior performance or simultaneous performance on the ground of a claim for the increase of a redemption price (negative)

The repurchase under Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects shall be concluded regardless of the intention of the project operator by unilaterally paying to the project operator the amount equivalent to the compensation which the repurchase right holder has received when the requirements for repurchase occur within the repurchase period, and even if the price of land, etc. is significantly changed compared with the time of acquisition, consultation between the parties pursuant to Article 91(4) of the same Act has been concluded, or a project operator or the repurchase right holder requests a court to increase or decrease the amount so long as the amount is not determined by the court, the amount equivalent to the compensation which he has received to exercise the repurchase right shall be paid in advance, and it is sufficient to do so. The project operator can only claim a increase of the repurchase price by lawsuit to the court, and it cannot be asserted as a prior performance or simultaneous performance defense that the difference between the increased redemption price and the compensation amount on the ground of the claim to increase the redemption price in lawsuit claiming the ownership transfer registration due to exercise the repurchase right.

Article 91 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects; Article 536 of the Civil Act

○○○ ○○ ○○mion (Attorney Park Jong-won, Counsel for the defendant-appellant)

Incheon Metropolitan City (Attorney Han-soo et al., Counsel for defendant-appellant)

Incheon District Court Decision 2005Na7153 Decided June 15, 2006

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

1. According to the records, the road works and delivery works around the land of this case were completed on October 199, and the non-party 1 obtained permission to divert farmland from the head of Incheon District Office on November 5, 1999, and performed the embling work on the land of this case since then, the road construction works completed on February 23, 200 without any impediment due to the above embling work. In light of the above facts and the fact that the land of this case was not constructed on the legal surface of the road of this case, and there is no obstacle to the use and maintenance of the road of this case, the need to construct the land of this case on the legal surface of the road of this case is due to the embling work of the non-party 1, and even if it was understood by the plaintiff of the above embling work of the non-party 1, such circumstance alone does not constitute the exercise of the right of repurchase or the abuse of the right of repurchase. Thus, the argument in the grounds of appeal on this point cannot be accepted.

2. 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 when the requirements for repurchase occur within the repurchase period, by unilaterally paying to the project operator the amount equivalent to the compensation that the repurchase right holder received in advance and expressing his/her intent. Even if the price of land, etc. is significantly changed compared with the time of acquisition, the amount agreed upon between the parties pursuant to Article 91(4) of the Public Works Act has been concluded, or the court has determined the amount by claiming an increase or decrease in the amount of the land, etc., the amount equivalent to the compensation paid to exercise the repurchase right shall be paid in advance to the court without asking for an increase in the price of the land, etc., if the price of the land, etc. is significantly changed, or the amount of the repurchase right is not determined by the court. The project operator can only claim an increase in the price of the repurchase to the court by filing a claim for registration of ownership transfer due to the exercise of the repurchase right.

The court below rejected the defendant's assertion that the transfer registration procedure for the land redeemed to the plaintiff cannot be implemented until the amount of the market price of the land in this case is paid as a redemption price. The court below rejected the defendant's assertion on the ground that the land in this case was sufficient by paying in advance the amount of the compensation received in order to exercise the right of repurchase, even if the consultation between the parties is formed under Article 9 (3) of the former Act on Special Cases Concerning the Acquisition of Land for Public Use and Compensation for Loss (repealed by Act No. 6656, Feb. 4, 2002; hereinafter "former Land Expropriation Act"), and since Article 2 and Article 9 of the Addenda of the former Land Expropriation Act are applicable to the public works projects implemented under the former Land Expropriation Act and the former Land Expropriation Act, the court below erred by misapprehending the legal principles of Article 9 (3) of the former Land Expropriation Act, since the above provision of the former Land Expropriation Act shall not be applied to the public works projects implemented under the former Land Expropriation Act and the former Land Expropriation Act.

3. 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.

Justices Kim Ji-hyung (Presiding Justice)