[1] The method of exercising the repurchase right under Article 9 of the Public Loss Compensation Act

[2] The types of lawsuits filed by the project implementer against the repurchase right holder for an increase or decrease in the repurchase price under Article 75-2 (2) of the Land Expropriation Act (=party litigation)

[3] The time when the repurchase price payment obligation of the repurchase right holder arises (=the time when the repurchase right is exercised), the amount of compensation paid at the time of acquisition of the land subject to repurchase, and whether damages for delay is incurred in relation to the difference between the repurchase price and the redemption price

[4] Whether a sentence of provisional execution may be rendered where a judgment citing a claim for property right in a party suit under public law is rendered (affirmative)

[5] In a case where the price of the land to be redeemed is substantially changed compared with the time of acquisition, whether consultation and application for adjudication for the determination of the redemption price should be made within the period of exercise of the redemptive right (negative), and whether consultation and adjudication procedures for the determination of the redemption price can be conducted where the land is expropriated (affirmative)

[6] The method of determining the redemption price in a case where the price of the land to be redeemed is significantly changed compared to that of the acquisition of the land under the Public Compensation of Loss

[7] The meaning of "the fluctuation rate of similar land" under Article 7 (1) of the Enforcement Decree of the Act on the Compensation for Public Loss, and the method of selecting adjacent similar land to calculate the fluctuation rate

[1] According to Article 9(1) of the Special Act on Compensation for Public Loss and Compensation for Losses, where the requirements for redemption arise within the period of redemption, even if the price of the land to be redeemed has been significantly lowered or increased compared to the time of acquisition, the redemption right holder is established by unilaterally paying the amount equivalent to the compensation received to the project operator in advance, and

[2] According to Article 9(3) of the Special Act on the Compensation for Public Loss, Article 7(1) and (3) of the Enforcement Decree of the same Act, and Articles 73 through 75-2 of the Land Expropriation Act, a lawsuit filed by a project operator against a repurchase right holder pursuant to Article 75-2(2) of the Land Expropriation Act may be sought from the repurchase right holder on the condition that the repurchase right holder would be changed more than the amount equivalent to the compensation paid at the time of the acquisition of the land to be redeemed, on the condition that the repurchase

[3] The payment obligation of the repurchase price by the repurchase right holder is already incurred at the time of exercise of the repurchase right, and the difference between the amount equivalent to the compensation paid at the time of acquisition of the land to be redeemed and the amount set at the repurchase price in the adjudication or administrative litigation procedure is also related to the land to be redeemed. Thus, unless the difference is paid at the time of exercise of the repurchase right, damages for delay is generated, and the specific repurchase price actually becomes final

[4] According to Article 8 (2) of the Administrative Litigation Act, since the provisions of the Civil Procedure Act are generally applicable mutatis mutandis to the administrative litigation, a court may declare provisional execution in a case where it makes a judgment that accepts a claim of property right in a party suit

[5] Examining the provisions of the Enforcement Decree of the Public Compensation Act, the Enforcement Decree of the same Act, and the Land Expropriation Act applicable mutatis mutandis thereto, there is no special limitation on the period during which the project operator or the repurchase right holder may make an application for a consultation and a ruling to determine the repurchase price in order to determine the repurchase price if the price of the land to be redeemed is significantly changed compared to the time of acquisition. Since the exercise of the repurchase right and the procedures for determining the repurchase price differ in nature, it shall not be deemed that an application for consultation and a ruling to determine the repurchase price should also be made within that period, on the ground that Article 72(2) of the Land Expropriation Act, which is applicable mutatis mutandis under Article 9(5) of the Public Compensation for Land Expropriation Act, provides that the exercise of the repurchase right and the procedure for determining the repurchase price have been set at six months from the date of receipt of the notice of the exercise period of the repurchase right under Article 9(5) of the Land Expropriation Act

[6] The Special Act on the Compensation for Public Loss and Compensation for Losses and the Enforcement Decree of the same Act explicitly stipulate what method the price of the land to be redeemed is to be determined where the price of the land to be redeemed is substantially changed compared with that of the time of the acquisition of the right to repurchase. However, in full view of the provisions of Article 9(1) and (3) of the same Act and Article 7(1) and (3) of the Enforcement Decree of the same Act, if the appraisal amount as of the time of exercising the right to repurchase is less than or equal to the compensation paid by the project operator to the landowner at the time of the exercise of the right to repurchase, multiplied by the appraisal amount of the land to be redeemed at the time of the exercise of the right to repurchase, the amount equivalent to the compensation paid by the project operator at the time of the acquisition of the right to repurchase becomes the repurchase price in light of the relevant provisions. Thus, if the price of the land to be redeemed increases considerably and thereby exceeds the amount calculated by multiplying the land price of the adjacent similar land at the time of the exercise of the right to repurchase, the compensation plus compensation amount [the compensation amount obtained by the land price increase rate]

[7] The fluctuation rate of neighboring similar land under Article 7 (1) of the Enforcement Decree of the Public Land Use and Compensation Act refers to the fluctuation rate of land prices of neighboring similar land which is geographically adjacent to the land to be redeemed, and whose land category and the current land use are similar to those of the land on the public register, and thus the average land price fluctuation rate of neighboring land cannot be said to be the fluctuation rate of similar land. Thus, neighboring similar land to calculate the fluctuation rate of land prices cannot be said to be the fluctuation rate of land prices of neighboring land from the time of acquisition to the time of exercise of the right of repurchase, there is no change in the land category of the public register at the time of exercise of the right of repurchase, the situation of use of the land at the time of exercise of the right of repurchase, etc.,

[1] Article 9(1) of the Special Act on the Compensation for Public Loss / [2] Article 9(3) of the Special Act on the Compensation for Public Loss; Article 7(1) and (3) of the Special Act on the Compensation for Public Loss; Articles 73, 74, 75, and 75-2(2) of the Special Act on the Compensation for Public Loss; Articles 3 subparag. 2 and 39 of the Administrative Litigation Act / [3] Articles 46(1), 71, and 75-2 of the Land Expropriation Act; Article 9 of the Special Act on the Compensation for Public Loss / [4] Article 199 of the Civil Procedure Act; Articles 3 subparag. 2, 8(2), and 27 of the Administrative Litigation Act / [5] Article 9 of the Special Act on the Compensation for Public Loss; Article 7(1) and (3) of the Enforcement Decree of the Special Act on the Compensation for Public Loss; Article 71(2) of the Land Expropriation Act / [6] Article 9(1) and (3) of the Special Act on the Compensation for Public Loss

[1] [7] Supreme Court Decision 93Nu1725 delivered on May 24, 1994 (Gong194Ha, 1843) / [1] Supreme Court Decision 92Da7832 delivered on June 23, 1992 (Gong1992, 2257) 92Da6501 delivered on November 24, 1992 (Gong1993, 2197) 93Da22491 delivered on August 24, 1993 (Gong1993Ha, 2619, 2610, 2999) 29Da197969 delivered on June 30, 195 (Gong194, 2610)

[Judgment of the court below]

Defendant 1 and one other (Attorney Choi Won-young, Counsel for the defendant-appellant)

Seoul High Court Decision 96Gu24479 delivered on January 22, 1999

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. As to Defendant 1’s ground of appeal No. 3

According to Article 9 (1) of the Special Act on the Compensation for Public Loss (hereinafter “Special Act”), where the requirements for repurchase arise within the period of repurchase, even if the price of the land subject to repurchase markedly drops or increases compared to that of the time of acquisition, the repurchase right holder shall unilaterally pay to the project implementer the amount equivalent to the compensation received in advance and express his/her intent to purchase it (see, e.g., Supreme Court Decisions 92Da7832, Jun. 23, 1992; 93Nu1725, May 24, 1994). Meanwhile, pursuant to Article 9 (3) of the Special Act and Article 7 (1) of the Enforcement Decree of the same Act (hereinafter “Enforcement Decree”) of the Land Expropriation Act, if the price of the land subject to repurchase exceeds the amount calculated by multiplying the compensation paid at the time of repurchase by the rate of land fluctuation to neighboring similar land to the project at the time of repurchase, the repurchase right holder or repurchase right holder shall consult with the other party to the Land Expropriation Committee to determine the repurchase price.

As above, a lawsuit filed against a repurchase right holder pursuant to Article 75-2 (2) of the Land Expropriation Act is entitled to seek payment of the difference between the repurchase price and the amount equivalent to the above compensation on the premise that the repurchase price will be increased compared to the above amount equivalent to the repurchase price by the project implementer in a party suit under public law (see, e.g., Supreme Court Decisions 91Nu285, Nov. 26, 191; 91Nu1615, Apr. 14, 1992). Meanwhile, the obligation to pay the repurchase price by the repurchase right holder is already existing at the time of exercise of the repurchase right, and the difference between the amount equivalent to the above compensation and the redemption price is also related to the land subject to repurchase. Thus, as long as the difference is not paid at the time of exercise of the repurchase right, the damages for delay is generated, and in reality, the specific repurchase price is determined by a judgment or administrative litigation procedure, and thus, a claim for a provisional execution under Article 98 (1) of the Civil Procedure Act shall be deemed to apply mutatis mutandis (see, Supreme Court Decision 98Nu

According to the facts established by the court below, since Defendant 1 exercised the right of repurchase against the plaintiff, and the land to be redeemed was expropriated in the non-party Korea National Housing Corporation, and the obligation of the plaintiff to transfer ownership was impossible to perform the obligation of the plaintiff, the plaintiff filed a lawsuit to pay land expropriation compensation received from the non-party Corporation, and received the judgment amount after receiving a final decision in favor of the plaintiff as to the amount corresponding to the portion of the land to be redeemed and the damages for delay thereof. Thus, the court below's order the payment of the money calculated by deducting the amount recovered by the plaintiff from the difference between the amount equivalent to the compensation paid by the above defendant at the time of the exercise of the right of repurchase and the redemption price, and order the plaintiff to pay the amount of the money recovered by the plaintiff

This part of the grounds of appeal cannot be accepted.

2. As to Defendant 1’s ground of appeal No. 4

In light of the provisions of the Act on Special Cases and the Enforcement Decree of the Land Expropriation Act, and the provisions applicable mutatis mutandis thereto, where the price of the land to be redeemed is significantly modified compared to the time of acquisition, the project operator or the repurchase right holder shall not limit the period for consultation and application for adjudication in order to determine the redemption price. Since the exercise of the repurchase right and the procedure for determination of the redemption price differ in nature, it shall not be deemed that consultation and application for adjudication in order to determine the redemption price should be made within the said period on the ground that Article 72(2) of the Land Expropriation Act, which is applicable mutatis mutandis under Article 9(5) of the Act on Special Cases, provides that the exercise period of the repurchase right shall be six months from the date of receipt of notice of the exercise period of the repurchase right under Article 72(5) of the Land Expropriation Act, which is applicable mutatis mutandis under Article 9(5) of the Act on Special Cases.

This part of the grounds of appeal cannot be accepted.

3. As to the defendants' grounds of appeal Nos. 1 and 2

In light of the provisions of Article 9(1) and (3) of the Act on Special Cases concerning the Settlement of Land and its Enforcement Decree, there is no explicit provision as to how the price of the land to be redeemed is substantially modified compared with that of the land to be redeemed at the time of exercising the right of repurchase. However, in full view of the provisions of Article 9(1) and (3) of the Act on Special Cases concerning the Settlement of Land and Article 7(1) and (3) of the Enforcement Decree, if the appraised amount as of the time of exercising the right of repurchase is less than or equal to the amount obtained by the project operator at the time of the exercise of the right of repurchase multiplied by the fluctuation rate of neighboring land unrelated to the project at the time of repurchase, the amount equivalent to the indemnity paid by the project operator at the time of acquiring the right of repurchase is clear in light of the relevant provisions. Thus, if the price of the land to be redeemed exceeds the amount obtained by multiplying the redemption price of the land at the time of the exercise of the right of repurchase by the fluctuation rate of neighboring land x 2).

In addition, the land price fluctuation rate of neighboring similar land under Article 7 (1) of the Enforcement Decree refers to the land to be repurchased and the land price fluctuation rate of neighboring similar land which is geographically adjacent and similar to the land category on the public register and the land use rate of neighboring similar land which is similar to the land category on the public register, and it cannot be deemed the land price fluctuation rate of neighboring similar land (see, e.g., above 93Nu1725, Supreme Court Decisions 92Da1725, Aug. 13, 1993; 92Da50652, Aug. 13, 1993). Thus, neighboring similar land to calculate the land price fluctuation rate is not changed from the time of acquisition of the right of repurchase to the time of exercise of the right of repurchase, and there is no change in the land category on the public register and land use rate, etc. between the standard land price and the officially announced land price, and it is not necessarily necessary to select

According to the reasoning of the judgment below, from among the lands for which the standard land price and the officially announced land price have been continuously announced from the time of exercising the right of repurchase, the court below determined that the average change rate of land prices between the date of acquiring consultation and the time of exercising the right of repurchase is about 1.61 ( Address 1 omitted) to the time of exercising the right of repurchase as 5,00 won per 5,00 won, the above ( Address 2 omitted) increase from 66,90 to 160,00 won per 160,000 won, the appraisal price of the land at 160,000 won per 160,000 won per 70,000 won per 160,000 won per 30,000 won (including 160,000 won per 160,000 won to 160,000 won and 27,07,000 won per 67,07,000 won per unit of the land to be paid by the Plaintiff 17.

Examining the record, in this case, an appraiser of the court below (this same applies likewise to the appraiser of the court below) selected the above two lands as a neighboring similar land because most of the above two lands were designated as a prearranged land area for repurchase in 1989 and the reference land price such as the land category and the current use of the public register remains. In light of the purport of the Enforcement Decree, which provides that the average land category of Si/Gun/Gu units shall not change rate of land price, but the rate of land price fluctuation of neighboring similar land shall be based on the rate of land price fluctuation of neighboring land, not the rate of land price fluctuation, as of December 15, 1986 to June 30, 1989, where the standard land price is applied, it cannot be said that the above two lands, which were selected as a neighboring similar land, are less than 10,000 won, or less than 98,000 won per 98,000 won per 98,000 won per 98,000 won per land price per consultation.

In addition, it is clear that Defendant 1’s assertion that the rate of land fluctuation in neighboring similar land should be applied to 2.61 times in calculating the redemption price in this case is derived from the misunderstanding of the purport of the legal principles set forth in the above 93Nu1725 decision.

Ultimately, the fact-finding and judgment of the court below are justified in accordance with the legal principles as seen earlier, and it cannot be said that the court below found fact-finding without reasonable evidence, violated the rule of experience as to the determination of evidence, or violated the rule of experience as to the judgment of evidence, or violated the precedents

All of the arguments in the grounds of appeal on this part cannot be accepted.

4. Therefore, all appeals are 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 Seo-sung (Presiding Justice)