Plaintiff (Law Firm Lee Hun-sik, Attorney Kang Jong-soo, Counsel for plaintiff-appellant)

Jeju Free International City Development Center (Law Firm LLC, Attorneys Kang Dong-ro, Counsel for defendant-appellant)

Jeju District Court Decision 2016Da5480 Decided April 18, 2019

August 12, 2020

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant shall implement the procedure for the registration of ownership transfer for the repurchase on April 29, 2016, with respect to the portion of 264 square meters in the attached Form No. 10, 39 through 42, 15, 14, 13, 12, 11, and 10 among the portion of 1637 square meters and 790 square meters in the attached Form No. 10, 39 through 42, 15, 14, 13, 12, 11, and 10 square meters connected to the Plaintiff, Seopo-si ( Address 3 omitted), among the 5346 square meters in the annexed Form No. 5346 square meters in Seopo-si (the Plaintiff added the Plaintiff to the conjunctive claim for the registration of ownership transfer for the reason of the invalidation of the sales contract between the Plaintiff and the Defendant).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

This court's reasoning is the same as the judgment of the court of first instance, except for addition of the following judgments, and therefore cites it as it is in accordance with the main sentence of Article 420

A. Determination as to the assertion that a repurchase right cannot be exercised in the event of an original impossibility

1) The defendant's assertion

The repurchase right under Article 91(1) of the Land Compensation Act refers to a case where the whole or part of the land becomes unnecessary due to the discontinuation or alteration of the relevant project or any other reason," and it does not mean a case where the project is not arbitrarily impossible.

2) Determination

In light of the purport that the Land Compensation Act recognizes a redemptive right and the objective meaning of the language and text, there is no reasonable ground to interpret that the relevant project does not fall under “a discontinuation of the relevant project” or “a case where it becomes unnecessary” in the event that the relevant project is temporarily impossible.

B. Determination as to the defendant's simultaneous performance of the redemption price increase

1) The defendant's assertion

Since the price of the land of this case increases remarkably, the defendant can claim an increase in the redemption price, and the payment obligation of the plaintiff's increased redemption price is related to the defendant's obligation of transfer registration of ownership.

2) Determination

Repurchase under Article 91 of the Land Compensation Act is established regardless of the intention of the project operator by unilaterally paying in advance the amount equivalent to the compensation paid by the repurchase right holder to the project operator when the requirements for repurchase occur within the repurchase period. Even if the price of land, etc. is significantly changed compared with the time of acquisition, an agreement between the parties regarding the amount has been reached pursuant to Article 91(4) of the same Act, or a request by the project operator or the repurchase right holder for an increase or decrease of the amount, and the court has not determined the amount, the amount equivalent to the compensation paid in order to exercise the repurchase right shall be paid in advance, and it is sufficient to do so. The project operator can only claim the increase of the redemption price by lawsuit to the court, and the project operator may not assert the difference between the increased redemption price and the compensation amount on the ground of the claim for increase of the redemption price (see Supreme Court Decision 2006Da49277, Dec. 21, 2006, etc.).

C. Determination as to the simultaneous performance defense of the claim for reimbursement of expenses or the claim for restitution of unjust enrichment under Article 203 of the Civil Act

1) The defendant's assertion

If the Defendant returned the instant land to the Plaintiff, the Plaintiff and the Defendant are in a relationship between the occupant and the reinstated person. The construction, including the construction of site and the construction of infrastructure, has been carried out during the course of the project, and the value of the instant land has been significantly increased. The Plaintiff has the obligation to reimburse expenses or the obligation to return unjust enrichment to the Defendant, which is simultaneously in the performance relationship

2) Determination

The Land Compensation Act recognizes a repurchase right by setting strict requirements, so that when the price of the land has changed substantially, it shall be agreed with each other, but if the price of the land is changed remarkably, it may request the court to increase or decrease the repurchase

Even if the Defendant had the obligation to reimburse expenses or the obligation to return unjust enrichment claimed against the Plaintiff, such obligation shall be resolved through a lawsuit seeking an increase or decrease in the amount of redemption, and on the grounds as seen earlier, it cannot be asserted as a simultaneous performance defense in the lawsuit claiming ownership transfer registration due to exercise of the

2. Conclusion

The first instance judgment is justifiable, and the defendant's appeal is dismissed.

(attached Form omitted)

Judges Cho Byung-dae (Presiding Judge)