[1] The requirements for a court to request an adjudication on the constitutionality of a law

[2] Where a lawsuit claiming the transfer registration of ownership was filed at the appellate court due to the lapse of the exclusion period due to a judicial exercise of the right to repurchase under the provision of Article 9 (1) of the Act on the unconstitutionality of a claim for adjudication on the unconstitutionality of a claim for adjudication on the constitutionality of a claim for adjudication on the unconstitutionality of a claim for adjudication on the unconstitutionality of a claim for the transfer registration of ownership

[1] In order to request a trial on the constitutionality of a law, the pertinent law should be the premise for a trial on the constitutionality of a law. Here, the term "the premise of a trial" means a specific case that is the premise of a trial before the court, the law at issue should be applied to a trial on the relevant litigation case, and the court in charge of the relevant case shall make a different judgment depending on whether the law is in violation of the Constitution.

[2] Where a lawsuit claiming registration of transfer of ownership was filed at the appellate court on the ground that the right of repurchase was exercised in court due to a judicial exercise of the right of repurchase under the provision of Article 9 (1) of the same Act on the grounds of the lapse of the exclusion period, but the appellate court filed a petition for review of the unconstitutionality of the provision imposing the right of repurchase under Article 9 (1) of the same Act on the preferential performance of the right of repurchase, the Supreme Court's legitimacy of the judgment at the appellate court is limited to the legitimacy of the exercise of the right of repurchase, which is the cause of the claim in the above case, and the decision at the appellate court did not affect the conclusion of the judgment at all, and whether the above provision of the same Act becomes null and void because it is not a matter of the Supreme Court's determination at all, and thus, it cannot affect the conclusion of the judgment at the appellate court.

[1] Article 107 (1) of the Constitution, Article 41 (1) of the Constitutional Court Act / [2] Article 107 (1) of the Constitution, Article 41 (1) of the Constitutional Court Act, Article 9 of the Special Act on the Compensation for Public Loss

[1] Supreme Court Order 97Kao24 dated April 10, 1998 (Gong1998Sang, 1271)

Applicant (Attorney Hong-chul et al., Counsel for the plaintiff-appellant)

The request for an adjudication on constitutionality shall be dismissed.

1. In order to request a trial on the constitutionality of a law, the pertinent law should be the premise for a trial on the constitutionality of a law. Here, the term "the premise of a trial" means that a specific case should be pending before the court, the law at issue should be applicable to the trial on the relevant litigation case, and the court in charge of the relevant case shall make another decision depending on whether the law is in violation of the Constitution (see Supreme Court Order 97Kao24, Apr. 10, 1998).

2. Article 9(1) of the Act on Special Cases concerning the Compensation for Public Loss (hereinafter referred to as the "Special Cases concerning the Compensation for Land Loss") provides that the owner shall exercise the right of repurchase after the payment of the prescribed redemption price (i.e., imposition of the right of repurchase) is invalid in violation of the principle of equality under Article 11 of the Constitution. The applicant filed a lawsuit claiming the transfer of ownership on the land acquired through consultation under the Act on Special Cases concerning the Settlement of Land, etc. on the ground that he/she exercised the right of repurchase under Article 11 against the Republic of Korea other than the applicant, but filed a petition for appeal with the Supreme Court against the judgment of the court below. Thus, the determination of the unconstitutionality of the above provision

3. However, according to the records, the plaintiff's lawsuit claiming the registration of transfer of ownership is the cause of the claim "re-determination of the date of service by the complaint." Accordingly, the court below dismissed the lawsuit if the plaintiff's lawsuit is unlawful after the exclusion period of the exercise of the right of repurchase under the judgment that the delivery date of the complaint, which is the time of exercise of the right of repurchase, was followed by the exclusion period of the exercise of the right of repurchase. Thus, the decision of the court below is just and reasonable. Thus, the judgment of the court below is only based on the legitimacy of the exercise of the right of repurchase, which is the cause of the claim in the above case, and the decision of the court below is not affected by the decision of the Supreme Court, and the issue of whether the plaintiff's exercise of the right of repurchase becomes null and void before exercise of the right of repurchase is not a matter of the judgment of the Supreme Court. Thus, it cannot be said that the decision of the court below is a premise for the judgment of the Supreme Court.

However, in light of the grounds of appeal in the above litigation, the applicant exercised a redemptive right to the Republic of Korea, who is the other party, outside the court prior to the filing of the lawsuit, but the deposit of the redemption price was only made at the time of the filing of the lawsuit, the application in this case is deemed to have been made in order to satisfy the purport that the exercise of the redemptive right to the outside court prior to the deposit of the redemption price should be deemed lawful. However, the exercise of the right to the repurchase outside the court as alleged above is not the cause of the lawsuit in the above case, but is not subject to the determination of the above case. Therefore, the issue of the above provision of the law cannot be the premise of the judgment

4. Therefore, since the request for a judgment on the unconstitutionality of this case is unlawful, it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)