[1] Whether the exclusion period for the exercise of the right to repurchase under the Public Compensation for Loss and Compensation of Losses is not run in the event that the project implementer is not notified or notified (negative)

[2] The legal nature of Article 72(1) of the Land Expropriation Act, which provides that a project operator shall immediately notify or announce the original owner, etc. of the land to be redeemed, and whether a tort is established in a case where a project operator under the Special Act on the Compensation for Public Loss and Compensation of Land, etc. fails to publicly announce the land to the original owner, etc. despite the occurrence of the land to be redeemed, thereby causing loss of the right of repurchase itself, due to

[3] Method of calculating the amount of damages due to the loss of the repurchase right by the original owner, etc. under the Public Loss Compensation Act

[1] The right to repurchase is naturally extinguished upon the lapse of the exclusion period as the right to form the right, and even if the obligation to notify or make a public announcement under the Public Compensation for Loss and Compensation of Losses Act is the legal obligation of the project implementer, such circumstance alone cannot be deemed as not proceeding with the exclusion period for the exercise of the right to repurchase in the absence of

[2] The purport of Article 72 (1) of the Land Expropriation Act, which is applicable mutatis mutandis under Article 9 (5) of the Special Act on the Compensation for Public Loss and Compensation for Losses, is to ensure the effectiveness of exercising the right of repurchase, which is naturally recognized by law, by first notifying the original owner of the land, if there is land no longer necessary for the public interest in light of the legislative reason of the provision of the right of repurchase, such as the request for at least public burden, the necessity to protect the original owner who has lost ownership in a non-voluntary manner, and the principle of fairness, and by allowing the original owner to notify whether the land should be redeemed. Thus, the above provision is not a mere declaration, but a legal obligation of the corporate owner is not a mere declaration, and the project implementer under the Special Act on the Compensation for Public Loss and Compensation for Losses, fails to give notice or public notice to the original owner, etc., even though there is a duty to give notice or public notice under the above provisions, and thereby causes loss to the original owner, etc. by exercising the right of repurchase itself, thereby constituting a tort.

[3] The amount of compensation due to the loss of the right of repurchase by the original owner, etc. under the Special Act on the Compensation for Public Loss of Loss of the Right of repurchase - The amount of compensation shall be determined by deducting the repurchase price to be returned if the repurchase right holder exercised the right of repurchase from the market price of the object at the time of loss of the right of repurchase. In full view of the provisions of Articles 9(1) and (3) of the Special Act on the Compensation for Public Loss of Land, Article 7(1) and (3) of the Enforcement Decree of the Special Act on the Compensation for Loss of Land, the appraisal price at the time of exercise of the right of repurchase x the amount of compensation which is not significantly changed from the appraisal price at the time of acquisition of the right of repurchase x the amount which is not yet determined by the appraisal price increase in adjacent land which is unrelated to the relevant project until the time of repurchase / the appraisal price increase in neighboring land at the time of the said right of repurchase / the appraisal price increase in neighboring land at the time of the said right of repurchase.

[1] Article 111 of the Civil Act, Article 9(5) of the Special Act on the Compensation for Public Loss, Article 72 of the Land Expropriation Act / [2] Article 750 of the Civil Act, Article 9(5) of the Special Act on the Compensation for Public Loss, Article 72(1) of the Land Expropriation Act / [3] Article 9(1) and (3) of the Special Act on the Compensation for Public Loss, Article 7(1)

[1] Supreme Court Decision 98Da46945 delivered on April 9, 199 (Gong1999Sang, 840) / [2] Supreme Court Decision 99Da45864 delivered on November 14, 200 (Gong2001Sang, 24) / [2] Supreme Court Decision 92Da3467 delivered on May 27, 1993 (193Ha, 1869) / [3] Supreme Court Decision 99Du3416 delivered on November 28, 200 (Gong201Sang, 173)

Park Young-il (Law Office, Law Office, Attorneys Kim Young-soo et al., Counsel for the plaintiff-appellant)

Seosan-si (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

1. The plaintiff's main claim is dismissed.

2. The Defendant shall pay to the Plaintiff 5,490,707 won and 5% per annum from November 1, 1997 to August 23, 2001; and 25% per annum from the following day to the full payment date.

3. The plaintiff's remaining conjunctive claims are dismissed.

4. Ten minutes of the litigation shall be borne by the defendant, and the remainder by the plaintiff.

5. Paragraph 2 can be provisionally executed.

1. The primary purport of the claim

The defendant shall implement the procedure for the registration of ownership transfer to the plaintiff on the ground of the repurchase of the copy of the complaint of this case with respect to the forest land of 9-2,983 square meters in Seosan-dong, Seosan-dong, Seosan-do.

2. Preliminary purport of claim

From November 1, 1997, the defendant shall pay to the plaintiff 287,38,000 won with 5% interest per annum from the date of service of a copy of the claim of this case and of the application for modification of the cause of the claim of this case, and 25% interest per annum from the following day to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively considering the whole purport of the pleading in the descriptions of Gap evidence 1-2, 3, 2-1 through 4, Gap evidence 3-1, 2, 4-1 through 6, Gap evidence 5-1 through 5, and Gap evidence 9, and there is no reflective evidence.

A. The Plaintiff owned 7,983 square meters of land in Seosan-dong, Seosan-dong (hereinafter “the instant land”). However, the Defendant agreed with the Plaintiff to use the instant land as a site for treatment facilities of foul waste from October 17, 1986 to use it as a site for treatment facilities of foul waste.

B. As a result, on December 19, 1986, the Plaintiff and the Defendant entered into an exchange contract with the purport that the Defendant shall pay to the Plaintiff KRW 1,95,370,00, the difference between the appraisal price of the instant land and the instant land owned by the Defendant, and KRW 15,96,00,000,000,000,000 per annum 8-1,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

C. On January 7, 1987, the Defendant completed the registration of ownership transfer under the Defendant’s name on the ground of exchange for the instant land, and the Plaintiff also completed the registration of ownership transfer under the Plaintiff’s name on the land located in the above sub-asbestos on the same day. Around that time, the Defendant received KRW 1,95,370 of the difference in the appraisal price from the Defendant.

(d)The Defendant started the subsequent installation of the excreta treatment plant, but failed to develop the project due to the collective farming, civil complaints, etc. of neighboring residents of the site for the project, around 1996, decided to change the site of the excreta treatment plant into 801, Seosan-dong 801, Seosan-dong in connection with the sewage treatment plant and to establish a basic plan on the installation of the excreta treatment plant around 4th of the same year.

(e)In addition, around October 196, the Defendant established a plan for a housing site development project in Yannam District and incorporated the whole land of this case into the above project site, and thus, the land of this case was no longer necessary for the project for the treatment of excreta and sewage, and thereafter, the Defendant did not notify or publicly notify the Plaintiff of the fact that the repurchase right occurred due to the abolition of the use of the treatment facilities of excreta and sewage

F. On November 8, 199, the Plaintiff deposited KRW 15,966,00, which is the appraised price of the instant land, with a redemption price on November 8, 199, and filed the instant lawsuit seeking the implementation of the procedure for ownership transfer registration following the exercise of a repurchase right on the same day.

2. Judgment on the main claim

A. At the time of the filing of the instant suit, the Plaintiff also lapsed the period for exercising the right to repurchase under Article 9(1) of the Act on Special Cases Concerning the Compensation for Public Loss (hereinafter referred to as the “Act on Special Cases Concerning the Compensation for Loss of Loss”). However, as in the instant case, the Plaintiff asserts that, without giving the project operator an opportunity to repurchase through the notice of repurchase, the project operator failed to exercise the right to repurchase (1 years from October 1996) but if the relevant land is still owned, the project operator failed to perform the right to repurchase cannot be argued that the period for exercising the right to repurchase has expired due to the excess of the period for exercising the right to repurchase under the principle of good faith, and that the right to repurchase is still entitled to exercise the right to repurchase, notwithstanding the intention of exercising the right to repurchase. Therefore, the Plaintiff asserts that he

In regard to this, the Defendant asserted that the exchange contract concluded between the Plaintiff and the Defendant cannot be deemed to be subject to the Act on Special Cases, unless it is not cash compensation, and thus, the right to repurchase of the Plaintiff’s assertion cannot be created as a result of the exchange contract in this case, and that the right to repurchase of the Plaintiff’s assertion naturally terminates by the intention of the exclusion period.

B.Therefore, even if the Defendant transferred ownership of another parcel of land along with some cash in return for the acquisition of the instant land, this is merely a payment in lieu of full cash compensation in accordance with an agreement with the Plaintiff, and the Defendant acquired the instant parcel of land through consultation for public projects. Thus, the legal relationship between them should be governed by the Act on Special Cases Concerning the Acquisition of Land, inasmuch as the cause of acquisition in the register on the instant parcel of land is nothing more than the cause of acquisition in the register.

In addition, the right to repurchase is naturally extinguished upon the lapse of the exclusion period as a formation right, and the obligation to give notice or public notice under the Act on Special Cases is a legal obligation of a project operator as follows, such circumstance alone cannot be deemed as not to proceed with the exclusion period for the exercise of the right to repurchase in the absence of the notice or public notice of repurchase. If the Plaintiff’s opinion is accepted, Article 9(5) of the Special Act on Special Cases Concerning Redemption provides that the exercise of the right to repurchase shall be extinguished within a period of six months in the event the project operator gives notice or public notice of repurchase under Article 72(5) of the Land Expropriation Act mutatis mutandis, and the purport of separately stipulating the exclusion period under paragraphs (1) and (2) shall be dismissed, and therefore the Plaintiff’

C. Accordingly, the plaintiff's right to repurchase of the land of this case occurred on October 1996 in accordance with Article 9 (1) of the Act on Special Cases Concerning the Redemption of Land of this case, but the right to repurchase was extinguished due to the lapse of the exclusion period on October 1997 after one year thereafter. Thus, the plaintiff's right to repurchase of this case cannot be accepted later under the premise that the exercise of the right to repurchase by the plaintiff is valid.

3. Determination on the conjunctive claim

(a) Occurrence of liability for damages;

The purport of Article 72 (1) of the Land Expropriation Act, which is applied mutatis mutandis pursuant to Article 9 (5) of the Act on Special Cases Concerning the Exercise of Right of Redemption, is to ensure the effectiveness of exercise of Right of Redemption, which is naturally recognized as a matter of law, by first notifying the original owner of the land, if there is no land necessary for the public interest in light of the legislative reason of the provision of Right of Redemption, such as the request for at least public burdens, the necessity to protect the original owner who has lost ownership in a non-voluntary manner, and the principle of fairness, and by allowing the original owner to notify whether the land should be repurchased. Thus, the above provision is not a mere declaration, but rather a legal obligation of the corporate owner to give notice or give public notice under the above provisions, even if the project implementer has a duty to give notice or give public notice under the above provisions, and thus it is impossible for the original owner, etc. to exercise the Right of Redemption, thereby causing loss to the original owner, etc. (see Supreme Court Decision 90Da196481, Apr. 1, 2001).

According to the above facts, the land of this case became unnecessary for the pertinent public project due to the change of its purpose on October 1996. Thus, the defendant, who is the project implementer, is obligated to give notice or public notice of repurchase under the above provisions to the plaintiff. However, although the defendant violated such duty and failed to give notice or public notice that the right of repurchase occurred to the plaintiff, thereby preventing the plaintiff from exercising the right of repurchase within the repurchase period under Article 9 (1) of the Act on Special Cases Concerning the Redemption, thereby causing damage to the plaintiff by making it impossible for the plaintiff to exercise the right of repurchase, which is recognized by law, due to the lapse of the exercise period of the right of repurchase. Thus, the defendant is liable to compensate the plaintiff for damages incurred thereby.

B. Scope of liability for damages

(1) The amount of damages due to the loss of the repurchase right by the original owner, etc. under the Special Act shall be determined by the amount obtained by deducting the repurchase price to be returned when the repurchase right holder exercised the repurchase right at the market price of the object at the time of loss

However, in full view of the provisions of Article 9(1) and (3) of the Act on Special Cases, and Article 7(1) and (3) of the Enforcement Decree of the Act on Special Cases, i.e., the redemption land price at the time of exercising the right of repurchase, i. the appraisal price at the time of exercising the right of repurchase, i.e., the appraisal price paid under Article 9(1) of the Act on Special Cases due to the failure to change substantially compared with the time of acquisition of the right of repurchase, i.e. the appraisal price at the time of exercising the right of repurchase, i. the compensation paid under Article 9(1) of the Act on Special Cases, i.e. the time of repurchase, the amount obtained by multiplying the appraisal price of neighboring land unrelated to the project at the time of repurchase by the fluctuation rate of similar land (the rise in land price + the rise in land price at the time of repurchase x the rise in appraisal price at the time of repurchase x the appraisal price at which the appraisal price at the time of repurchase is deducted.

Therefore, if the amount of appraisal of the object of repurchase at the time of loss of the right of repurchase is less than, or the same is less, the amount of compensation paid by deducting the above amount of compensation from the amount of appraisal by deducting the price fluctuation rate of similar similar land unrelated to the relevant project until the time, but if it exceeds, the amount of compensation calculated by deducting the above amount of compensation from the amount of appraisal at the time of loss of the right of repurchase. In other words, the amount obtained by deducting the 'redemption price calculated as above' from the amount of appraisal at the time of loss of the right of repurchase.

(2) Comprehensively taking into account the results of appraisal of the market price in the instant case, the results of appraisal of the appraiser Park Jong-dae, and the fact-finding conducted with respect to the president of the Hongsung Branch of this Court, the Plaintiff lost the right to repurchase at the time of October 1997, the appraised value of the instant land, which is the object of repurchase at the time of the loss of the right to repurchase with the exclusion period, is 303,354,000 won (=38,000 x 7,983 square meters). The price fluctuation in the instant land during the period from October 1, 1996 to October 197, 197, which was the date of acquisition of the instant land through consultation, was almost little, and between January 7, 1987 to October 31, 1997, the appraisal value of the instant land, which is the object of repurchase at the time of the exclusion period and the purport of the pleading. The appraisal value increase is reasonable to recognize the Plaintiff’s compensation amount equivalent to 30.60.

In light of the above circumstances, the appraisal value at the time of loss of the right of repurchase of the land of this case exceeds the amount calculated by multiplying the above compensation by the fluctuation rate of neighboring similar land unrelated to the pertinent business at the time of acquisition of the right of repurchase. Thus, the Plaintiff’s damages calculated by deducting the repurchase price calculated from the above appraisal value pursuant to Article 9(1) and (3) of the Enforcement Decree of the Special Act on Special Cases, and Article 7(1) and (3) of the Enforcement Decree of the Special Act on Special Cases are 5,490,707 won [303,354,00 won-(303,354,54,00-15,96,96,000 x 0.3439)]. In other words, even if the Plaintiff ultimately redeems the land of this case between October 10, 1996 to October 10, 1997 】 “the Plaintiff’s compensation amount which is the Defendant, who is the project implementer, 10056,3006,50630.6.30.4.0.6.

(3) On the other hand, at the time of the acquisition of the instant land by consultation, the Defendant argued that the Plaintiff should also deduct the market price at the time of loss of the right to repurchase of the above sub-asbestos land owned by the Plaintiff in damages caused by the Plaintiff’s loss of the Plaintiff’s right to repurchase, since the Plaintiff exchanged the land of this case with the land of this case 8-1 forest land 53,041 square meters and 17,693 square meters in Seosan-si, Seosan-si, Seosan-si, Seosan-si and compensation for the difference in the appraisal price of the said land. However, the above sub-asbestos land, which had completed the registration of ownership transfer by the Defendant exchanged with the instant land of this case and completed the registration of ownership transfer, was substituted for payment of compensation equivalent to the appraisal price, and was paid by the Plaintiff at the time of the acquisition of the land of this case as the price of the land of this case, as well as the compensation money received by the Plaintiff at the time of the acquisition of the land

(4)Therefore, the plaintiff's conjunctive claim of this case seeking damages is justified only within the extent of the above recognition, and the remainder is without merit.

4. Conclusion

Therefore, the plaintiff's primary claim of this case is dismissed as it is without merit. The defendant is obligated to pay to the plaintiff 5,490,707 won and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from November 1, 1997 to August 23, 2001, and 25% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, since it is recognized that it is reasonable for the defendant to resist the existence and scope of the obligation to pay to the defendant since November 1, 1997, as a tort against the plaintiff. Thus, the plaintiff's primary claim of this case is accepted only within the scope of the above recognition, and the remainder of the conjunctive claim is dismissed as it is without merit. It is so decided as per Disposition.

5. As to the plaintiff's application for resumption of argument

A. In the briefs submitted after the closing of argument in this case, the plaintiff refers to the fluctuation rate of neighboring similar land under Article 7 (1) of the Enforcement Decree of the Special Act, among the land whose standard land price and officially announced land price were publicly announced, which is geographically adjacent to the land subject to repurchase and the land whose land category and land use are similar to those of the land on the public register. The "Seongsan-dong, Seosan-dong, Seosan-dong, Seosan-do, 11,306 square meters of the land, which is not included in the land of this case, unlike the land of this case, is not similar to the land of this case, and thus the selection of neighboring similar land was erroneous, and the part from January 7, 1987 to June 30, 1989, which was calculated at the average rate of land category of the similar land of Seosan-gun or Seosan-si, and thus, it cannot be said to be against the purport of the former Enforcement Decree to reduce the fluctuation rate of neighboring land.

B. According to the result of appraisal on the market price of the appraiser Park Jong-dae and the fact-finding on the head of the Hongsung branch of this court, it is clear that the "Yeong-dong 11 Forest land and 3,306 square meters of Yan-dong Yansan-dong Yan-dong, Hongsung branch of the Korea Appraisal Board selected as a similar neighboring land which is the subject of the land price fluctuation rate." Thus, it cannot be said that there was a mistake in the selection of the comparable land of the Hongsung branch of the Korea Appraisal Board, and since the land price rate between January 7, 1987 and June 30, 1989, when the standard land price is applied, the land price appraisal rate between January 7, 1987 and June 30, 1989, which is the time before the land price disclosure system was introduced, the average land price rate by Si/Gun/Gu unit could not be compared and analyzed.

In addition, since the land of this case was incorporated into a housing site development project in the Yannam-dong area around October 1996 and became unnecessary for the project for the treatment of excreta and sewage, which is the project in question, as a result, the plaintiff's repurchase right was created, and the price of the land of this case has not been changed almost between October 196 and October 197, which is the period during which the plaintiff could exercise the repurchase right, and if there are such circumstances, it can be seen that the appraised value of the land of this case was assessed regardless of the land site development project in the Yannam-dong, Seosan-dong, Busan-do, as it is sufficiently known that the plaintiff was assessed regardless of the land site development project in the Yannam-dong. Thus, even if the "3,306 square meters" is not incorporated into the above housing site development project, the plaintiff's application for the resumption of pleading cannot be viewed as a son's fault in evaluating the similar land-related land price fluctuation rate.

Judges Yellow-gu (Presiding Judge)