[1] The meaning of "re-purchase right may be asserted against a third party when the acquisition by consultation or expropriation of the land required for the public works has been registered under the conditions as prescribed by the Registration of Real Estate Act" under Article 91 (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[2] In a case where Gap local government acquired land from Eul et al. in order to acquire a site for a road project and completed the registration of ownership transfer, and the land was included in a planned site for a housing site development project, it was transferred to Byung Corporation without compensation, which is the implementer of the housing site development project, and thereafter, the designation of the planned site for a housing site development project, approval of the modification of the development plan and the approval of the implementation plan were publicly notified, and the land was used as a site for a multi-unit housing in the housing site development project, the case holding that Eul et al. shall exercise a redemptive right at any time from the time when the right of repurchase arises to the time when the

[3] Method of calculating the amount of damages due to the loss of a repurchase right by an original owner, etc. under the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Article 91(5) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007) provides that “The repurchase right may be contested against a third party when the acquisition through consultation or the expropriation of the land required for the public works is registered under the conditions as prescribed by the Registration of Real Estate Act.” This means that even if the object of the acquisition through consultation or the expropriation is transferred to a third party, the status of the repurchase right holder may be maintained and the repurchase right holder may exercise the repurchase right, and also the third party may claim it.

[2] The case holding that in case where Gap local government acquired a right to repurchase and completed the registration of transfer of ownership by consultation with Eul in order to acquire a site for a road project, and the land was included in a planned site for a housing site development project, if it was transferred to Byung Corporation without compensation, which is the implementer of the housing site development project, and the land was used as a site for a multi-family housing in the housing site for a housing site development project due to the announcement of approval for modification of the development plan for the housing site development project and the approval for modification of the development plan and the implementation plan, and thus the land becomes no longer necessary for the road project, and thereafter a right to repurchase was created to Eul, etc. as of the date of the acquisition of the right to repurchase, the situation that the land was needed for the housing site development project does not affect the establishment or extinction of the right to repurchase, and the registration of transfer of ownership was completed due to consultation with Eul local government, etc., and Eul, etc., exercise

[3] The amount of damages due to the loss of the right of repurchase by the original owner, etc. under the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “Land Compensation Act”) shall be the amount obtained by deducting the repurchase price to be returned when the repurchase right holder exercises the right of repurchase from the market price of the object at the time of loss of the right of repurchase. If the appraised value of the object of repurchase at the time of loss of the right of repurchase is less than or equal to the amount obtained by multiplying the “compensation paid” under Article 91(1) of the Land Compensation Act by the fluctuation rate of neighboring similar land unrelated to the business until now, the appraisal value shall not be calculated by deducting the “paid compensation” from the appraisal value at the time of loss of the right of repurchase. In other words, the amount exceeding it shall be the amount calculated by multiplying the amount paid by the inflation rate of neighboring land at the time of loss of the right of repurchase by the inflation rate.

[1] Article 91 (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007) / [2] Article 91 (1) and (5) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007) / [3] Article 91 (1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works (amended by Act No. 8665 of Oct. 17, 2007), Articles 393, 750, and 763 of the Civil Act

[3] Supreme Court Decision 99Da45864 delivered on November 14, 2000 (Gong2001Sang, 24)

Plaintiff 1 and one other (Law Firm Shinsung, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Seosung-si (Law Firm Lee & Lee LLC, Attorneys Kim Yong-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2003103 decided August 13, 2015

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the plaintiffs' grounds of appeal

A. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On May 10, 1976, Plaintiff 1 completed the registration of ownership transfer with respect to the land of tin ( Address 1 omitted) on the Dongdong-si (hereinafter referred to as “We”), and Plaintiff 2 completed the registration of ownership transfer with respect to the land of tin ( Address 2 omitted) on February 14, 1975. The Defendant became the executor of the road construction project of tin-half-half-half-yearly road (hereinafter referred to as the “road construction project of this case”) around 1999, pursuant to Article 199-158 of the Notification of 199-158 of the Seosung-si, Seosung-si, Seosung-si ( Address 3 omitted) to 3.34 km in Seosung-si, Seosung-si, Seosung-si ( Address 4 omitted).

(2) In accordance with the Act on Special Cases Concerning the Acquisition of Land for Public Use and the Compensation for Loss in order to acquire the site for the instant road project, the Defendant: (a) on November 15, 1999, obtained from Plaintiff 1 284 square meters among the said ( Address 1 omitted); (b) from Plaintiff 2 on the same day, 585 square meters among the said ( Address 2 omitted); (c) paid Plaintiff 1 51,830,000 won to Plaintiff 1 as compensation for the acquisition of consultation; and (d) paid Plaintiff 2 KRW 90,675,000 to Plaintiff 2. The said 284 square meters acquired through consultation with Plaintiff 1 ( Address 5 omitted); and (e) on the same day, the said 585 square meters acquired through consultation with Plaintiff 2 was divided into 585 square meters prior to 199,299, and (e) on September 19, 199, Defendant 199.

(3) Until February 28, 2001, the Defendant acquired 64% of the site of the road project of this case including (No. 5 omitted) land and (No. 6 omitted) land (hereinafter “each land of this case”). Around that time, most of the site of the road project of this case was anticipated to be designated as a planned site for housing site development, the Defendant suspended additional acquisition of the site of the road project of this case and suspended construction.

(4) On April 25, 2001, the Minister of Construction and Transportation publicly announced the designation of a planned area for the housing site development in the Taesung-dong district (hereinafter “instant housing site development project”) under the Ministry of Construction and Transportation’s notification No. 2001-104 on April 25, 2001, but publicly announced the designation of a planned area for the said planned area and the development plan under the Ministry of Construction and Transportation’s notification No. 2001-326 on December 14, 2001. The Korea Land Corporation became the executor of the instant housing site development project, and the development period was announced until December 31, 207. When each of the instant land was included in the said planned area for the housing site development, the Defendant transferred each of the instant land acquired through consultation from the Plaintiffs to the Korea Land Corporation without compensation on November 2002.

(5) On December 26, 2002, the Minister of Construction and Transportation publicly announced the alteration designation of the housing site development area, the alteration approval of the development plan, and the approval of the implementation plan for the housing site development project of this case under Article 2002-298 of the Ministry of Construction and Transportation, and each of the land of this case was included in the said planned housing site development area. The Korea Land Corporation commenced the construction of the housing site development project of this case around March 5, 2003, and each of the land of this case

B. The lower court acknowledged the Defendant’s liability for damages against the Plaintiffs as follows, but partially accepted the scope of damages by reducing the scope of damages to the first instance court.

(1) On December 26, 2002, as the modification of the development plan and the approval of the implementation plan of the instant housing site development project were publicly announced, the instant road project, which was the purpose of acquisition by consultation, was abolished or modified, and there was a repurchase right on each of the instant land against the Plaintiffs on December 26, 2002. However, since the Defendant, as the implementer of the instant housing site development project, did not notify the Plaintiffs of the occurrence of the repurchase right, which caused the Plaintiffs to lose the repurchase right itself with the intention to exercise the repurchase right, on November 15, 2009, by failing to notify the Plaintiffs of the occurrence of the repurchase right, the Defendant, as the implementer of the instant

(2) The Plaintiffs paid the redemption price corresponding to the previous compensation, etc. that was paid as the road project of this case to the Defendant, and recovered each of the instant land itself, but the Korea Land Corporation, the executor of the housing site development project of this case, was in the position to be entitled to receive the relevant compensation in the process of re-acquisition or expropriation of each of the instant land. Therefore, the value of repurchase rights held by the Plaintiffs cannot be assessed on the basis of each of the instant land itself, and the Korea Land Corporation should assess the value of repurchase rights based on the compensation that the Plaintiffs are entitled to receive in the process of re-acquisition or expropriation of each of the instant land. Ultimately, the value of repurchase rights should be assessed on the basis of the compensation that the Plaintiffs are entitled to receive in the process of re-acquisition or expropriation of each of the instant land by December 14, 201 when the approval of the development plan for the housing site development project of this case was publicly notified, applying the officially announced value as of January 1, 20

C. However, the lower court’s determination on the scope of damages due to the loss of a redemptive right is difficult to accept in the following respect.

(1) Where approval of the development plan and implementation plan of the housing site development project of this case are publicly announced, a repurchase right has been created to the Plaintiffs as of the date of acquisition through consultation (Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects). Even if each land of this case was required in the housing site development project of this case, such circumstance does not affect the establishment or termination of the repurchase right of each of the instant land (see Supreme Court Decision 2013Da1457, Sept. 4, 2014).

(2) Article 91(5) of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 8665 of Oct. 17, 2007; hereinafter “Land Compensation Act”) provides that “The repurchase right may be contested against a third party when the acquisition through consultation or the expropriation of the land necessary for the public works has been registered under the conditions as prescribed by the Registration of Real Estate Act.” This means that even if the subject matter of the acquisition through consultation or the expropriation is transferred to a third party, if the acquisition through consultation or the expropriation is registered, the status of the repurchase right holder may be maintained and the repurchase right holder may exercise the repurchase right as it is, and the third party may also claim it. As for each of the instant lands, the Plaintiffs exercise the repurchase right as to each of the instant lands at any time between the time when the period of exclusion and the expiration thereof.

(3) The amount of damages due to the loss of the right of repurchase by the original owner, etc. under the Land Compensation Act is the amount obtained by deducting the repurchase price to be returned when the repurchase right holder exercised the right of repurchase from the market price of the object as of the time of loss of the right of repurchase. In a case where the appraised value of the object of repurchase at the time of loss of the right of repurchase is less than, or equal to, the amount obtained by multiplying the “compensation paid” under Article 91(1) of the Land Compensation Act by the fluctuation rate of neighboring similar land unrelated to the project up to the time of loss of the right of repurchase, it shall be calculated by deducting the said “paid compensation” from the said appraised value. However, if it exceeds, it shall be calculated by deducting the said amount [the appraised value at the time of loss of the right of repurchase - (the appraised value at the time of loss of the right of repurchase - the paid compensation x the amount computed by multiplying the inflation rate of neighboring land at the time of the said “paid compensation” by

D. Nevertheless, while the lower court calculated the market price of each of the instant lands based on January 1, 2002, the time prior to the establishment of tort, even though the Plaintiffs’ redemptive right was established by the extinguishment of November 15, 2009, with the exclusion period of 10 years. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of damages due to the loss of the right to repurchase, which affected the conclusion of the judgment. The Plaintiffs’ appeal on this part is with merit.

2. Judgment on the Defendant’s grounds of appeal

The right of repurchase of the plaintiffs cannot be deemed lost because the Korea Land Corporation commenced the construction of the instant housing site development project on each of the instant land, and therefore, it cannot be deemed that the extinctive prescription of the plaintiffs is complete due to the lapse of ten years from that time.

The judgment of the court below to the same purport is just, and there is no error by misapprehending the legal principles as to the expiration of extinctive prescription.

3. Conclusion

The part of the judgment below against the plaintiffs is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)