[1] Period and method for exercising the repurchase right under Article 9 of the Public Loss Compensation Act

[2] In the event of a judicial exercise of the right of repurchase under Article 9 of the Public Compensation for Loss and Compensation of Losses Act, whether a duplicate of a complaint containing a declaration of intent to repurchase shall be served on the other party within the period of

[3] In a case where a lawsuit was brought to the court for the exercise of the right of repurchase extinguished due to the lapse of the period for exercising the right of repurchase under Article 9 of the Public Compensation for Loss of Losses and Compensation of Losses Act (=

[4] In a case where the appellate court rendered a judgment of retirement of a case which shall be dismissed, but only the plaintiff appealed against the appeal, the measures to be taken by the appellate court (=the dismissal of appeal)

[5] Whether the exercise period of the right to repurchase under Article 9 of the Special Act on the Compensation for Public Loss and Compensation of Losses is an ex officio matter (affirmative)

[6] In a lawsuit which is the cause of a claim, whether the court should examine whether or not the exercise of the right of repurchase other than a trial has the effect of the right of repurchase or not (negative)

[1] The right of repurchase under Article 9 of the Act on the Acquisition of Land, Etc., recognized as the owner, etc. at the time of acquisition, when all or part of the land acquired through consultation by the State, etc. becomes unnecessary due to the discontinuation, change, or any other cause of the relevant public project within 10 years from the date of acquisition, shall be exercised within 10 years from the date of acquisition of the relevant land, and the said period of exercise shall be deemed the exclusion period, and the said right of repurchase shall be deemed to be exercised within the exclusion period, and the said period of exercise shall be deemed to be the exclusion period. However, the right of repurchase shall take effect only when the declaration of intention to repurchase is delivered to the other

[2] In a case where a repurchase right holder exercises the right of repurchase under Article 9 of the Special Act on the Compensation for Public Loss and Compensation for Loss by delivering a copy of the complaint containing a declaration of intention of repurchase to the Defendant, the exercise of the right of repurchase becomes effective only when the copy of the complaint reaches the Defendant. Thus, the sale becomes effective between the repurchase right holder and the Defendant. Therefore, the copy of the complaint containing a declaration of intention of repurchase should be served to the Defendant within the exclusion period stipulated under the same Act, but the repurchase right holder lawfully exercised the right

[3] In a case where a lawsuit was instituted as the cause of a claim for the exercise of the right of repurchase extinguished due to the lapse of the period for exercising the right of repurchase under Article 9 of the Public Compensation for Loss of Losses and Compensation for Losses, the claim shall be dismissed on the ground that the lawsuit itself is not unlawful, but merely because the effect of the sale, which is the legal relationship to be formed as the exercise of the right

[4] The appellate court rendered a judgment of retirement in regard to a lawsuit that makes the exercise of the right of repurchase extinguished due to the lapse of the period for exercise of the right of repurchase under Article 9 of the Special Act on the Compensation for Public Loss and Compensation of Losses. However, in the event that only the plaintiff appealed, the appellate court erred in dismissing the claim without dismissing it. However, the appellate court's judgment of dismissal against the plaintiff cannot be rendered more unfavorable than the judgment of retirement of the appellate

[5] The period of exercise of the right to repurchase under Article 9 of the Special Act on the Compensation for Public Loss and Compensation of Losses is the period of exclusion, and whether the period of exercise is complied with as so-called ex officio examination, and the court should investigate

[6] Where it is obvious that the cause of the plaintiff's claim is "re-determination of the date of service by the complaint" and it is a judicial repurchase right exercise, even if the complaint states that the plaintiff requested the defendant to repurchase the land over several times before the lawsuit is filed, the court shall not be required to examine whether or not the right of repurchase other than the judgment, not the cause of the claim, is exercised or not.

[1] Article 9 of the Special Act on the Compensation for Public Loss, Article 111 of the Civil Act / [2] Article 9 of the Special Act on the Compensation for Public Loss, Article 111 of the Civil Act / [3] Article 183 of the Civil Procedure Act, Article 9 of the Special Act on the Compensation for Public Loss / [4] Articles 385 and 401 of the Civil Procedure Act / [5] Article

[1] [2] Supreme Court Decision 97Da1664 delivered on June 27, 1997 (Gong197Ha, 2366) / [1] Supreme Court Decision 73Da1747 delivered on February 27, 197 (Gong1976, 902) Supreme Court Decision 92Da4666 delivered on October 13, 1992 (Gong1992, 3125), Supreme Court Decision 94Da2748 delivered on August 25, 1995 (Gong1995Ha, 3260) / [4] Supreme Court Decision 95Da97945 delivered on July 11, 199 (Gong195, 295Ha, 296Da396497 delivered on September 16, 196) 96Da319799 decided Oct. 16, 196

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

Korea

Seoul High Court Decision 98Na16410 delivered on August 21, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent it supplements the grounds of appeal) are examined.

1. As to the grounds of appeal Nos. 4 and 5

When all or part of the land acquired through consultation by the State, etc. pursuant to the procedure under the Public Compensation for Loss Act (hereinafter referred to as the "Special Act") becomes unnecessary due to the discontinuation, alteration, etc. of the relevant public project within 10 years from the date of acquisition, the right to repurchase under Article 9 of the Special Act on the Acquisition of Land at the time of acquisition shall be exercised within 10 years from the date of acquisition of the relevant land, and the period of exercise shall be deemed the exclusion period. The said right to repurchase shall be exercised within the exclusion period. However, the right to repurchase shall take effect only when the declaration of intention to the other party is delivered to the other party as a form of a right requiring declaration of intention to the other party. However, where the right to repurchase is exercised within a trial by delivering a copy of the complaint containing the declaration of intention to repurchase to the defendant, the exercise of the right to repurchase becomes effective only when the copy of the complaint reaches the defendant, and thus, the sale becomes effective between the other party and the defendant.

According to the records, since the time when the defendant acquired the land of this case was recognized as the time of December 30, 1986 (the date of registration of transfer of ownership), in light of the above legal principles, if the plaintiff, who is the land owner at the time of acquisition, exercises a right of repurchase under Article 9 of the Act on Special Cases, as in this case, a copy of the complaint of this case, including the declaration of intention of repurchase, is lawful only if it is served on the defendant within December 30, 1996, which is the period for exercising the right of repurchase against the land of this case. Since it is apparent in the record that the plaintiff was served on the defendant on January 11, 1997, the plaintiff's exercise of the right of repurchase against the land of this case is not effective after the expiration of the period for exercising the right of repurchase (However, the court below's acquisition of the land of this case shall be considered as the time of the right of repurchase on December 26, 196, and shall not affect the exercise of the right of repurchase thereafter.

Unlike this, the previous precedents of the Supreme Court (Supreme Court Decision 97Da16664 delivered on June 27, 1997) regarding this issue are not acceptable to the assertion that the exercise of the Plaintiff’s right to repurchase is valid.

However, as in the instant case, even though the lawsuit is deemed to be the cause of claim for the exercise of the right of repurchase extinguished due to the lapse of the duration of the exercise, the lawsuit itself does not constitute an unlawful act, but it would be sufficient to dismiss the relevant claim on the ground that the effect of the sale, which is the legal relationship to be formed as the exercise of the right of repurchase, is not recognized as the cause of the claim. However, the lower court erred by viewing the instant lawsuit itself as unlawful.

However, as seen earlier, the claim in this case is placed in a name without any choice to be dismissed (the issue of whether the period of exercise of the right to repurchase, which is the exclusion period, is the matter of so-called ex officio investigation, and the court should investigate it ex officio and consider it in the trial. The Supreme Court Decision 96Da25371 delivered on September 20, 1996, which only the plaintiff appealed, cannot dismiss the judgment unfavorable to the plaintiff, and therefore the judgment of the court below shall be maintained (see Supreme Court Decision 96Da3852 delivered on October 11, 1996).

2. As to the grounds of appeal Nos. 1, 2, 3, and 6

According to the records, it is clear that the plaintiff's cause of claim of this case is "reback of the date of delivery of the complaint of this case". Thus, even if the plaintiff stated in the complaint that the plaintiff demanded redemption of this case to the defendant several times prior to the filing of the lawsuit of this case, the court below does not have to hold a hearing as to whether or not to exercise a right of repurchase other than the judgment, not the cause of claim, or

The court below's assertion does not relate to the cause of the claim of this case, which is the object of the judgment, but rather to the cause of the claim of this case, and it is based on either the plaintiff lawfully exercised the right of repurchase outside the court, or on the premise thereof, and the legitimacy of such assertion does not affect the legitimacy of the judgment of the court below. Thus,

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)