(a) Repurchase of requisitioned property used as a site for a government office building in the National Security Planning Department (affirmative);

(b) Duration of the right of repurchase of requisitioned property;

A. Article 20(1) of the Act on Special Measures for the Adjustment of Requisitioned Property refers to the termination of the need for the purchase of requisitioned property as one of the requirements for the exercise of the right of repurchase. As such, the phrase “military necessity” is the same as “military necessity” under Article 2(1) of the same Act, which stipulates the requirements for the purchase of requisitioned property among requisitioned property, and thus, the phrase “military necessity” should be changed to the same meaning as “the need for continuous use by the military due to military tension”. However, even if the National Security Planning Board, which has the character of the non military intelligence agency, uses it as its office site or plans to build the military apartment, which is a military welfare facility, it is difficult to deem that there is a military necessity.

B. Article 20(1) of the Act on Special Measures for Readjustment of Requisitioned Property provides that the right to purchase the requisitioned property shall be created with the requirement that all or part of the requisitioned property becomes unnecessary for the military purpose within five years from the termination date of redemption of securities, and the period for exercising the right to repurchase shall not be specified (period of exclusion). The duration of the right to repurchase shall be interpreted to be three months from the date of notice or last public notice of repurchase where the Minister of National Defense has given notice or public notice of repurchase pursuant to Article 20(2) and (3) of the Act on Special Measures for Readjustment of Requisitioned Property, and where there is no notice or public notice of repurchase, it shall be interpreted to be 10 years from the date when the right to repurchase occurs, or if at the end, the requisitioned property

Article 20 of the Act on Special Measures for Readjustment of Requisitioned Property

Plaintiff 1 and four others, Plaintiffs, Donghwa Law Firm, Attorneys Hab-hn et al., Counsel for the plaintiff-appellant-appellee)

Korea

Seoul High Court Decision 88Na18318 delivered on September 2, 1988

The judgment below is reversed and the case is remanded to Seoul High Court.

As to the ground of appeal by Defendant Litigation Performers

1. According to Article 20(1) of the Act on Special Measures for Readjustment of Requisitioned Property, when all or part of the requisitioned property purchased from the State becomes unnecessary for the military purpose, the requisitioned person or his heir shall be entitled to purchase the requisitioned property first, which refers to the time when the need for purchase of requisitioned property becomes unnecessary for the military purpose" as one of the requirements for exercise of the right of repurchase. As such, the term "military necessity" is the same as "the need for continuous use by the military purpose" under Article 2(1) of the Act on Special Measures for Readjustment of Requisitiond Property, which stipulates the requirements for purchase of requisitioned property, is the same as "the need for military purpose" under Article 2(1) of the above Act which stipulates the requirements for purchase of requisitioned property. According to the established judgment of the court below, the land of this case, which is the requisitioned property, is used as the site of government office building by the Ministry of National Security and Security from May 15, 1973, there is no military installation within the site, and it is difficult to view it as the same reason for the court below to acknowledge that it constitutes a military welfare facility as the above.

Article 20(1) of the Act on Special Measures provides that when all or part of the pertinent property is no longer necessary for military purposes within five years before the redemption of securities purchased under this Act is terminated or within five years after the redemption of the securities is terminated, the person requisitioned or his heir may purchase the securities first. This provision provides that the right to purchase the requisitioned property shall take precedence over the repurchase right holder with the condition that the whole or part of the requisitioned property becomes no longer necessary for military purposes within the aforementioned period, and it does not provide for the period for exercising the repurchase right (excluding the period). The judgment of the court below to the same purport is just and there is no error of law of misunderstanding the legal principles, such as the theory of lawsuit. There is no ground to discuss this issue.

2. According to Article 20(2) of the Special Measures Act, the Minister of National Defense shall notify the repurchase right holder of the acquisition of property to be sold under paragraph (1), and if the address or residence of the repurchase right holder is unknown, it shall be publicly announced at least twice in a daily newspaper. Paragraph (3) of the same Article provides that the repurchase right holder shall not exercise the repurchase right at the expiration of three months from the date when the said notification is received by the repurchase right holder or the last public notice is completed. The term of repurchase right under the Special Measures Act is clearly three months from the date when the Minister of National Defense provides notice or public notice of repurchase is given. If there is no notice or public notice of repurchase, it is reasonable to interpret the repurchase right as 10 years from the date when the requisition property becomes unnecessary for military purposes. According to the records, if the above period has elapsed, the repurchase right becomes extinct due to the lapse of the exclusion period. Accordingly, the Plaintiffs shall exercise the repurchase right more than the above period from May 15, 1973.

Nevertheless, the court below determined that the pertinent requisitioned property becomes unnecessary for military purposes and determined that the Minister of National Defense can exercise the right of repurchase even within 10 years from the time when the redemption of securities is terminated, and from the time when 5 years have passed from the time when the redemption of securities was terminated. Thus, the court below erred by misapprehending the legal principles on the period when the period of repurchase is not determined, and thus constitutes Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. The arguments are well-grounded.

Therefore, without further determination, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)