A. The meaning of "when there is no need for military purposes" under Article 20 (1) of the Act on Special Measures for Readjustment of Requisitioned Property

B. Whether the period of exercise of the redemptive right is the period of prosecution (negative)

C. The relationship between the duty of the State to transfer ownership according to the exercise of a redemptive right and the duty to pay the redemption price of the person requisitioned

A. The phrase "when there is no military necessity", which is the requirement for exercising the right of repurchase under Article 20 (1) of the Act on Special Measures for Readjustment of Requisitioned Property, means that the necessity of purchase of requisitioned property has ceased to exist. Thus, the phrase "military necessity" as above is the same as "the need for continuous use by the military" under Article 2 (1) of the same Act.

B. The purport of the provision of the above provision is that, if a military necessity ceases to exist within the prescribed period, a repurchase right may be exercised, and the so-called exclusion period shall not be determined that the repurchase right should be exercised within the above period.

C. The nature of the purchase due to the exercise of the right of repurchase under Article 590 of the Civil Code shall be deemed to be the same as the sale and purchase under private law. Therefore, it is reasonable to view that the State's obligation to transfer ownership according to the exercise of the right of repurchase and the obligation to pay the repurchase price of the requisitioned person are in the simultaneous performance relationship, barring special circumstances. The above right of repurchase is not the right of the requisitioned person to withhold his/her right to repurchase at the same time as the sale and purchase contract, and it is not the obligation to pay the repurchase

Articles 2(1) and 20(1) of the Act on Special Measures for Readjustment of Requisitioned Property, Article 590 of the Civil Act

Supreme Court Decision 88Meu15000 Decided December 12, 1989 (Dong)

Attorney Yang Yong-sik, Counsel for plaintiff-appellant

Korea

Seoul High Court Decision 89Na697 delivered on March 15, 1989

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1.With respect to the requirements of repurchase:

"Time when there has been no military necessity", which is the requirement for exercising the right of repurchase under Article 20 (1) of the Act on Special Measures for Readjustment of Requisitioned Property, means that the necessity of purchase of requisitioned property has ceased to exist. Therefore, the phrase "military necessity" should be viewed as the same meaning as "the need for continuous use by the military due to military tension" under Article 2 (1) of the same Act.

According to the facts established by the judgment of the court below, the land in this case was requisitioned and used as the site for the installation of the ammunition of the US Armed Forces Armed Forces, and the defendant purchased the land in accordance with the Act on Special Measures for the Readjustment of Requisitioned Property, but thereafter there remain no military installations by removing and relocating all the facilities incidental to the above land. Thus, the land in this case is essential for military purposes and it cannot be viewed as the land for which the military need not continue to use, unless there are special circumstances.

The court below's finding that the plaintiff's exercise of the right of repurchase constitutes "when there is no need for military purposes" as stipulated in Article 20 (1) of the above Act, and there is no error of law that misleads the interpretation of the law on the need for military purposes, such as the just theory.

2. As to the time of exercise of the redemptive right:

Article 20 (1) of the Act on Special Measures for Readjustment of Requisitioned Property provides that if the whole or part of the pertinent property becomes unnecessary for military purposes within five years before the redemption of the securities paid with the purchase price for the requisitioned property purchased under this Act is terminated or after the redemption thereof is completed, the person requisitioned or his heir may purchase the said property preferentially. The purport of the above provision is that the person subject to requisition or his heir may exercise the right of repurchase when a military necessity is extinguished within the above period, and the so-called exclusion period that the exercise of the right of repurchase shall not be determined within the above period.

As above, the judgment of the court below which held that the period of exclusion is just and there is no error of law by misunderstanding the interpretation of the law on the right of repurchase, such as the theory of lawsuit.

3. As to the exercise method of a redemptive right:

The nature of purchase due to the exercise of the right of repurchase stipulated in Article 20 of the Act on Special Measures for Readjustment of Requisitioned Property is the same as the sale and purchase under private law. Therefore, it is reasonable to view that the obligation of the State to transfer ownership according to the exercise of the right of repurchase and the obligation of the person subject to the requisition to pay the redemption price are in a simultaneous performance relationship, barring special circumstances. The above right of repurchase is not derived from the suspension of the right of the person subject to the requisition to repurchase at the same time as the sale and purchase contract, and it is not the obligation to pay the redemption

Even though Article 71 (1) of the Land Expropriation Act and Article 9 (1) of the Special Act on the Compensation for Public Loss, the exercise of the right to repurchase of requisitioned property without such express provision does not have any ground to interpret it as a prior performance, such as the case of land expropriation. Since the nature of repurchase is the same as the sale under private law, and it is not the same as reverse expropriation or requisition under public law, it is not the same as that of reverse expropriation or requisition under public law, there is no logic that when the purchase of requisitioned property was made by the State in advance payment of the purchase price, it is not concluded that the purchase price should also be implemented in advance.

The judgment of the court below that held to the above purport is just and there is no error of law by misunderstanding the legal principles of Article 20 of the Requisition Act or the principle of good faith, such as the theory of lawsuit.

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

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)