(a) The meaning of Article 9(1) of the Act on the Compensation of Public Loss and Compensation of Losses that “if the whole or part of the lands, etc. acquired is unnecessary due to the abolition, change or any other cause;

(b) An amount payable for exercise of a redemptive right where the price of land, etc. is substantially changed compared with at the time of acquisition;

C. Whether the subject claim is recognized as the effect of impossibility of performance

(d) The period allowed for filing an appeal and the period allowed for filing an incidental appellate brief;

A. The phrase “the time when the project operator becomes unable to use all or part of the land, etc. acquired due to the abolition of the relevant public project under Article 9(1) of the Special Act on the Compensation of Losses for Public Loss and the Compensation of Losses,” means the case where the project operator’s land, etc. acquired according to the procedure provided for in the same Act is no longer necessary for the relevant public project due to the discontinuation, etc. of the public project, which is its acquisition purpose, within a given period of time. Whether the necessity

B. Even if the price of land, etc. is significantly changed compared with at the time of acquisition, an agreement between the parties on the amount has been reached pursuant to Article 9(3) of the same Act, or the amount has not been determined by an adjudication by the Land Tribunal, the equivalent amount of the compensation received to exercise the right of repurchase without asking shall be paid in advance, and shall be adequate.

C. The Civil Act does not stipulate the right to claim compensation for the transfer of obligee and the right to cancel the contract as an effect of impossibility of performance, but there is no reason to deny the right to claim the subject matter.

(d)Appellee may make an incidental appeal even after the right to appeal has been extinguished, but it shall file an incidental appeal within the period for filing the appellate brief and submit the incidental appellate brief;

(b)Article 9(1) of the Civil Procedure Act, Article 390(d) of the Act on the Compensation for Public Loss and Compensation for Loss; Article 372, Article 395, Article 397 of the Civil Procedure Act;

A. Supreme Court Decisions 86Da324, 86Meu1579 Decided April 14, 1987 (Gong1987, 788) 91Da2927 decided April 28, 1992 (Gong1992, 1695) 93Da1177, 11784 decided January 25, 1994 (Gong1994Sang, 795) 92Da6501 decided November 24, 1992 (Gong1993, 217), 92Da7832 decided June 23, 1992 (Gong192, 257) 94Da2994989 decided May 29, 195 (Gong1994, 294, 1995)

[Defendant-Appellee] Plaintiff 1 and 1 other

Attorney Kim Chang-soo, Counsel for the defendant-appellant

Seoul High Court Decision 93Na38378 delivered on April 26, 1994

The defendant's appeal shall be dismissed, and the plaintiff's appeal shall be dismissed.

The costs of appeal shall be assessed against each party.

1. First, we examine the defendant's grounds for appeal.

A. As to the grounds of appeal Nos. 1, 2, and 3

When the need to use the whole or part of the land, etc. acquired due to the abolition, modification, etc. of the relevant public project under Article 9(1) of the Special Act on Special Cases concerning the Compensation for Public Loss (hereinafter referred to as the "Special Cases concerning the Compensation for Public Loss") is no longer necessary, it refers to the case where the project operator no longer has the necessity to use the land, etc. acquired according to the procedure under the Special Cases concerning the Compensation for Public Loss Act, for the said public project, due to the abolition, modification, etc. of the public project, which is its acquisition purpose, within a given period, and the existence of the necessity in this case is sufficient to determine according to objective circumstances regardless of the project operator's subjective intent

The lower court, on June 7, 1986, rendered a decision on urban planning that the land of this case was originally owned by the Plaintiff; the Defendant, including the land of this case under Article 12 of the Urban Planning Act, was to create an urban planning facility on the land of this case; and the Defendant, who is the executor of the welfare facility project according to the above urban planning, purchased compensation amounting to KRW 97,831,950 on December 1, 19 of this year; and thereafter completed the registration of ownership transfer thereafter; the part of the land of this case was used as a package leading to the determination of the above welfare complex; the remaining land was to be used as a green belt from the Seoul National Housing Corporation under Article 19 of the Housing Site Development Promotion Act; the land of this case was to be used as a green belt for the purpose of which the Minister of Construction and Transportation had decided on June 9, 198; and the land of this case was to be used as a green belt for the development of the housing site of this case, which was located in the Seoul National Housing Corporation.

B. As to the fifth ground for appeal

Even if the price of land, etc. is significantly changed compared with the time of acquisition, an agreement has been reached on the amount between the parties under Article 9(3) of the Act on Special Cases concerning the Settlement of Land, etc., or the amount has not been determined by the adjudication of the Land Tribunal, the amount equivalent to the compensation received in advance to exercise the right of repurchase without asking for the case where the price has been significantly changed or diminished, or where the price has fallen, or it is sufficient (see Supreme Court Decision 93Da2241 delivered on August 24, 1993).

Therefore, under the premise that the judgment below to the same purport is not erroneous in the misapprehension of legal principles as to Article 9 (3) of the Act on Special Cases concerning the Expropriation of Land, and the procedure under Article 9 (3) of the Act on Special Cases concerning the Expropriation of Land is unnecessary, the argument that the plaintiff can exercise the right of repurchase after payment or deposit in advance to the defendant under the premise that the compensation is determined by the adjudication of expropriation by the Central Land Expropriation Committee for the land of this case and the procedure under Article 9 (3)

C. As to the grounds of appeal Nos. 4 and 7

The Korean Civil Code does not separately stipulate the creditor's right to compensatory compensation and the right to cancel the contract, but there is no reason to deny the right to claim the subject matter in interpretation (see Supreme Court Decision 92Da4581, 4598 delivered on May 12, 1992). In the same purport, the court below held that the defendant is liable to pay the plaintiff the compensation amount of KRW 285,982,00,00 which falls under the above part of the land to be redeemed from the above Korea National Housing Corporation due to the incorporation of the land into the above area subject to housing site development, and the defendant's obligation to transfer the ownership into the non-party Korea National Housing Corporation was impossible. Accordingly, the defendant is liable to pay the plaintiff the compensation amount of KRW 682,705,00,000 which falls under the above part of the land to be redeemed due to the land expropriation, which is the cause of the impossibility of performance as above, and there is no error in the misapprehension of legal principles as to the right to claim the subject matter and the reasoning.

D. Regarding ground of appeal No. 6

For the reasons indicated in its reasoning, the court below's rejection of the defendant's counterclaim is just and acceptable, and there is no error in the misapprehension of legal principles as to offset such as the theory of lawsuit.

All arguments are without merit.

2. The plaintiff's appeal is examined as to the supplementary appeal.

Appellee may make an incidental appeal even after the right to appeal has been extinguished, but it is obvious that the plaintiff filed an incidental appeal only on July 21 of the last year of the period for filing the appellate brief after receiving a notice of receipt of the record of appeal on June 21, 1994, and the incidental appeal is not possible to correct the defect, since the incidental appeal is unlawful, and it is not possible to correct the defect.

3. Therefore, the defendant's appeal is dismissed on the ground that it is without merit, and the incidental appeal by the plaintiff is dismissed on the ground that the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent

Justices Cho Chang-tae (Presiding Justice)