Epick et al.

Korea

April 19, 2006

Seoul Central District Court Decision 2004Da357231 Delivered on August 10, 2005

1. All appeals filed by the plaintiffs are dismissed.

2. The appeal costs are assessed against the plaintiffs.

The judgment of the court of first instance is revoked. The defendant shall revoke the judgment of the court of first instance. With respect to KRW 42,487,654 and of KRW 3,98,877 among the plaintiff Lee Chang-woo, the defendant shall pay 38,488,77 with 20% interest per annum from the day following the delivery of the complaint of this case to the day of complete payment, and with respect to KRW 38,48,77, 388,77, 200 per annum from the day of delivery of the complaint of this case to the day of complete payment, and with respect to the share of KRW 2/6 of the land listed in the separate sheet No. 1 and the share of KRW 2,3 and 4 as to each of the lands listed in the separate sheet No. 2,44, 327,270 and the above plaintiff shall pay 20% interest per annum from the day after the day of the delivery of the complaint of this case to the day of full payment (as of June 23, 200).

1. Basic facts

A. The land No. 4 listed in the separate sheet (hereinafter “land No. 4”) was owned by Emphan-si, 227-2 and 393 square meters (hereinafter “the land before subdivision”) in Gyeonggi-do. The land of Emphan-gun was deceased on May 14, 1964 and was jointly inherited by the Plaintiffs, who were the wife of Emphan-gun and ASEAN.

B. On April 18, 1975, the land before subdivision was divided into each land (hereinafter “land 1”, “second land”, and “third land”) indicated in the annexed list Nos. 1, 2, and 3 on April 18, 1975. On September 14, 200, the Plaintiffs jointly inherited the land after the land was dead.

C. The Defendant purchased the land prior to subdivision and the land attached to the 4th unit located in the military unit under the Requisition Act (amended by Act No. 1336 of May 1, 1963), and completed the registration of ownership transfer on December 24, 1973 by each of the Defendant on the ground that it is necessary for the military to continue to use each of the above land under the Act on Special Measures for Readjustment of Requisition Property (hereinafter “Regulatory Act”) enacted by Act No. 2172 of January 1, 1970.

D. At the time of purchase of each of the above lands, the Defendant paid the purchase price for the land No. 4 under the Requisitioned Property Adjustment Act, and the purchase price for the land before installment as the requisition compensation securities issued on September 1, 1973, respectively. The securities issued on September 1, 1971 among the requisition compensation securities were completed on September 1, 1981, and the securities issued on September 1, 1973 were completed on September 1, 1983.

E. The Defendant purchased each of the above lands and used them for military land before December 31, 1983, and the need to continue military use was lost at the latest (However, it is not clear that specific usage details and the need to continue military use have ceased to exist). The Minister of National Defense did not notify or publicly notify redemption to the Plaintiffs and Facc pursuant to Article 20(2) of the Requisition.

F. Meanwhile, on October 18, 2001, the defendant notified the plaintiffs that the land 1 will be sold at the market price to the heir of the person requisitioned, and notified the same purport as to the land 2, 3, and 4 September 17, 2002. Accordingly, the plaintiff Lee Jong-soo notified the defendant on June 14, 2004 that 4/6 of the price of the land 1 was 4,004,160 won, 7/12 of the price of each of the land 2, 3, and 4 of Sep. 21, 2004 and 38,58,360 won, and completed the registration of ownership transfer as to each of the above shares purchased.

[Evidence] Gap evidence No. 1-20 (including each number), the purport of the whole pleading

2. Provisions of statutes

A. Article 20(1) of the Requisition of Requisition (amended by Act No. 4144 of Dec. 21, 1989) provides that "Where the whole or part of the pertinent property becomes unnecessary for military purposes within five years from the date when redemption of the securities paid with the purchase price of requisitioned property purchased under this Act is terminated (the date before the redemption is terminated or the date when redemption is terminated) (the above amendment referred to as "the date when redemption is terminated or the date when redemption is terminated" is made), the person requisitioned or his heir (hereinafter referred to as the "redemption right holder") may purchase the pertinent property first. In this case, the repurchase right holder shall pay to the National Treasury an amount calculated by adding 5 percent per annum interest to the price at the time of purchase from the year of issuance of the securities to the year of redemption." Paragraph (2) of the same Article provides that "the Minister of National Defense shall notify the repurchase right holder when the property to be sold under the provisions of paragraph (1) has occurred, and the address or residence of the repurchase right holder has not been known, the repurchase right holder shall not be publicly notified two or more times after the date."

B. The Requisition Act was amended by Act No. 4618 of Dec. 27, 1993, and Article 2 of the Addenda was newly established (hereinafter “the Addenda”). Paragraph (1) of the same Article provides that “The Minister of National Defense shall notify the person subject to requisition or his heir of the repurchase of the purchase of the purchase of the purchase of which the repurchase right had already been terminated at the time of the enforcement of this Act without notification or public notice under Article 20(2) and the provisions of Paragraph (2) of the same Article provide that “The Minister of National Defense shall, in cases of the purchase of the purchase of the purchase of the purchase of the purchase of which the repurchase right had already been terminated until the enforcement date of this Act from January 1, 1984 to December 31, 195, the Minister of National Defense shall make a notification to the person subject to requisition or his heir of the purchase of the purchase of the new purchase of the new purchase of the new purchase property.” Paragraph (2) of the same Article provides that “(3) of the same Article shall apply mutatis mutandis to the purchase of the relevant property.”

3. The plaintiffs' assertion

A. Land Nos. 1 through 4 (hereinafter “instant land”) is to ensure the effectiveness of the exercise of the right of repurchase, which is naturally recognized by the Minister of National Defense, by requiring the original owner to first be informed of whether it would be repurchased, and by demanding the Minister of National Defense to exercise the right of repurchase to exercise the right of repurchase, and by requiring the Minister to notify the Minister of National Defense to determine the legal obligation of the Minister of National Defense, as a matter of course, if the land is subject to repurchase under Article 2(1) of the Addenda to the new establishment, and the Minister of National Defense must notify the plaintiffs to repurchase their addresses or residences cannot be known. The purport of the above provision is to say that it falls under “when the addresses or residences of the repurchase right holders cannot be known” due to the request of at least the public burden, the necessity to protect the original owner who has lost ownership in a non-voluntary manner, and the principle of equity, and thus, it is not yet a legitimate announcement or announcement of repurchase of the plaintiffs’ right of repurchase.

B. Therefore, the plaintiff Lee Jong-woo is liable to return the money equivalent to the above difference to the above plaintiff as the liability for tort damages or the liability for return of unjust enrichment on the ground that the defendant is liable to return the money equivalent to the above difference, as seen earlier, because he purchased the right of repurchase in accordance with the market price at the time of the above free contract as seen in the above, which was mistaken for misunderstanding that the right of repurchase was extinguished due to the defendant's improper public announcement of redemption and notification of the sale of the number of stocks to the original purchase price as set forth in the Addenda to the new establishment as to the share of the above free contract.

C. Meanwhile, as long as the plaintiffs' right of repurchase against the land of this case has not yet been extinguished, the defendant is obligated to implement the procedure for ownership transfer registration on the land of this case remaining in its name with respect to the share in the land of this case on the grounds of repurchase on the date of delivery of the complaint of this case (the ground of the plaintiff's primary claim against the

D. Even if the right of repurchase against the instant land was extinguished, the Minister of National Defense violated the duty of notification or public notice under the Addenda to the new establishment, thereby resulting in failure to make a lawful notification or public notice of repurchase, and thereby resulting in the loss of the right of repurchase recognized by the law, thereby resulting in the loss of the right of repurchase, and thus, the Defendant is liable to pay the amount equivalent to the market price of the shares of the instant land remaining in the name of the Defendant to the Plaintiff Lee Chang-soo, as compensation for damages caused by the tort (the conjunctive cause of the Plaintiff Lee Chang-woo).

4. Determination

A. Whether the Addenda to the new establishment applies

Pursuant to Article 20 (1) of the Requisition Act, the term of a repurchase right of the requisitioned person or his/her heir created when all or part of the requisitioned property becomes unnecessary for military purposes, and where the Minister of National Defense has notified or publicly announced the repurchase pursuant to Article 20 (2) and (3) of the Requisition Act, it is clear that it is three months from the date of such notification or last public announcement, and where there is no notification or public announcement of repurchase, it is reasonable to interpret that the term of a repurchase right is ten years from the date of the occurrence of the repurchase right, and the time when the requisitioned property again becomes unnecessary for military purposes, and if that period is too excessive, the repurchase right shall be extinguished due to the lapse of the exclusion period (see Supreme Court Decisions 8Da25342, Jan. 12, 190; 90Meu643, Apr. 23, 1991).

As seen earlier, the need to continue to use the instant land for military purposes was disappeared at the latest before December 31, 1983, but the Minister of National Defense did not make a notification or public notice of repurchase under Article 20(2) of the Requisition. As such, the right to repurchase against the instant land was extinguished at the latest on December 31, 1993 due to the lapse of the exclusion period. According to the evidence revealed in the foregoing Paragraph 1, the instant land was not used for military purposes until December 27, 1993, when the newly established Addenda was enforced on January 1, 1984, and it can be recognized that there was no need for military purposes. Thus, Article 2 of the Addenda to the new Act shall apply to the instant land.

(b) Public announcement of redemption;

Therefore, pursuant to Article 2 (1) of the Addenda to the new establishment of the Ministry of National Defense, the Minister of National Defense must notify the plaintiffs and Huz. of the repurchase of the land of this case by December 31, 1995. In full view of the whole purport of the arguments in Section 1-6, Section 2-1, and Section 2 of Section B, the Minister of National Defense shall, in order to notify the land of this case of repurchase under Article 2 (1) of the Addenda to the new establishment, make a inquiry to confirm the residence of the plaintiff's Lee Jong-ri on July 14, 1995 (the address of the plaintiff Lee Jong-ri at the time of purchase of Section 1-C above was "762-33 of the children of Seongbuk-gu, Seoul, the address of the plaintiff Lee Jong-ri was divided into several sub-itemss, the head of the U.S. 3,5 Dong-dong, and the head of the U.S. 1-dong or the head of the U.S. 25-dong. 201, respectively.

(c) Period for exercising the redemptive right under the Addenda to the new establishment and extinction of such redemptive right; and

The period during which the Minister of National Defense can exercise the right of repurchase under Article 2 of the Addenda to the new establishment shall be three months from the date of receipt of the notice or the end of the last public notice under Article 20(3) of the Requisition Act when the notice or public notice was given by the Minister of National Defense. However, when there was no notice or public notice by the Minister of National Defense, the period should be determined by considering the need to ensure that the right of repurchase under Article 2 of the Addenda to the new Act gives consideration to the person whose right of repurchase is extinguished with the lapse of the exclusion period so that the right of repurchase can be re-exercise the right of repurchase, and the legal relationship therefrom should be ensured. Furthermore, in light of the balance with the cases where the Minister of National Defense is notified or public notice by the Minister of National Defense, it shall be deemed that the period of exercise of the right of repurchase is the same as March 31, 199, and the period of exercise of the right of repurchase under Article 2 of the above Addenda shall be deemed as the period of exclusion (see Supreme Court Decision 97Da164754797, Jun. 27, 199797. 197).

Therefore, even in the absence of the notification or announcement by the Minister of National Defense, the right to repurchase under Article 2 of the Addenda to the new Act ceases to exist after the lapse of March 31, 1996. Thus, even if such notification or announcement is illegal, the right to repurchase on the land of this case by the Plaintiffs under the aforementioned Addenda provision shall be deemed to have ceased to exist after the lapse of March 31, 1996.

(d) The gender of any illegal act or any unjust enrichment caused by the notice or public announcement of illegal repurchase;

Article 2 of the Addenda to the new establishment provides consideration for re-exercise of a repurchase right to a person whose repurchase right has already been extinguished upon the lapse of the exclusion period, and the purport of granting a repurchase right again is as follows: (a) in light of the characteristics inside the military where it is not easy to access by the general public to recover property due to the lapse of the exclusion period due to the absence of the Minister of National Defense’s notice; (b) in light of the characteristics of the relationship within the military where the exclusion period has already lapsed; (c) the person whose repurchase right has already been extinguished has already been granted an opportunity to repurchase once again to the person whose repurchase right has already been extinguished; and (d) on the other hand, there is a need to stabilize the legal relationship thereof; and (e) the period for exercising the repurchase right is limited to the period until March 31, 196, even if there is no notice from the Minister of National Defense.

In this regard, even if the Minister of National Defense did not properly notify and publicly announce the instant land pursuant to the Addenda to the new establishment, it is difficult to view that the Defendant is liable for tort against the Plaintiffs, and it cannot be said that the Defendant purchased some shares of the instant land in accordance with the market price as the Plaintiff Lee Jong-woo did not exercise a redemptive right, and that the Defendant’s receipt of the price would constitute unjust enrichment.

E. Therefore, the plaintiffs' above assertion is without merit.

5. Conclusion

Therefore, the plaintiff's claim and the plaintiff's primary and conjunctive claim are all dismissed as it is without merit, and the judgment of the court of first instance is just in this conclusion, and therefore, the plaintiffs' appeal is dismissed as it is without merit.

[Attachment List omitted]

Judges Cho Jin-jin (Presiding Judge)