[1] The period and method of exercising the right of repurchase under Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property

[2] In case where the exercise of the right of repurchase under Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property is judicially exercised, whether the duplicate of the complaint containing the declaration of intent of repurchase should be served on the other party within the exclusion period

[1] The period during which the Minister of National Defense may exercise the right of repurchase under Article 2 of the Addenda of the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993) shall be three months from the date of receipt of the notice under Article 2(3) and Article 20(3) of the Addenda of the same Act when the Minister of National Defense has given such notice. However, if there was no notice from the Minister of National Defense, it shall be considered that the right of repurchase under Article 2 of the Addenda of the same Act shall be considered as consideration for the person for whom the right of repurchase has expired to re-exercise the right of repurchase after the lapse of the limitation period, and the legal relationship therefrom shall be ensured. Furthermore, in light of the balance between the cases where the Minister of National Defense has given notice and where the Minister has given such notice, it shall be interpreted that the period of exercise of the right of repurchase shall be the kind of formation, and the period of exercise of the right of repurchase under Article 2 of the Addenda of the same Act shall be deemed as the exclusion period, and it shall not be exercised within the judicial period.

[2] In a case where a repurchase right holder exercises a judicial right by delivering a copy of the complaint containing the declaration of intention of repurchase to the State, the exercise of the repurchase right becomes effective only when the copy of the complaint reaches the State, and thus, the sale becomes effective between the repurchase right holder and the State. Therefore, even though a copy of the complaint containing the declaration of intention of repurchase should be served within the exclusion period, the repurchase right holder has lawfully exercised the repurchase right within the exclusion period.

Article 20 of the Act on Special Measures for Readjustment of Requisitioned Property, and Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993)

[1] Supreme Court Decision 92Da4666 delivered on October 13, 1992 (Gong1992, 3125), Supreme Court Decision 94Da27748 delivered on August 25, 1995 (Gong1995Ha, 3260), Supreme Court Decision 95Da30673 delivered on January 26, 1996 (Gong1996Sang, 746) / [2] Supreme Court Decision 73Da1747 delivered on February 27, 1976 (Gong1976, 902)

Plaintiff 1 and two others

Korea

Seoul District Court Decision 97Na5397 delivered on March 26, 1997

The judgment of the court below is reversed, and the case is remanded to Seoul District Court Panel Division.

The grounds of appeal by the defendant litigant are examined.

1. On the first ground for appeal

A. According to the reasoning of the judgment below, the court below rejected the plaintiffs' claim that the repurchase right should be exercised under Article 20 of the Act on Special Measures for the Adjustment of Requisition, which was enforced on December 1, 1972 by the defendant. Since the defendant purchased each land owned by the plaintiffs under the Act on Special Measures for the Adjustment of Requisition, and issued and delivered compensation securities equivalent to the amount of compensation to the plaintiffs, and the USF granted each land to the USFK, but it recognized that each land was not used for military purposes since the purchase by the defendant under the Act on Special Measures for the Restoration of Requisition until December 31, 1983, because the right of repurchase was no longer necessary for military purposes, but the repurchase right cannot be exercised under Article 39 of the Addenda of the Act on Special Measures for the Restoration of Requisition, which was extinguished without the Minister of National Defense's notice or public notice. Thus, the plaintiffs' claim that the repurchase right should not be exercised under Article 931 of the Addenda of the Act on Special Measures for the Restoration of Requisition and the period of repurchase.

B. The period during which the Minister of National Defense can exercise the right of repurchase under Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisition shall be three months from the date of receipt of the notice by Article 2(3) and Article 20(3) of the Addenda to the same Act. However, if there was no notice by the Minister of National Defense, consideration shall be given to the person whose right of repurchase is terminated with the lapse of the exclusion period for the right of repurchase under Article 2 of the Addenda to the same Act so that the legal relationship of the right of repurchase shall be ensured. Furthermore, in light of balance with the cases where the Minister of National Defense gives notice, it is reasonable to view that the other party is the time limit for the exercise of the right of repurchase, which would last be March 31, 1996 (see, e.g., Supreme Court Decision 94Da2748, Aug. 25, 199); however, the formation of the right of repurchase under Article 2 of the Addenda to the same Act shall not necessarily be 90 days or 196 days of exercise the right of repurchase.2.

Therefore, in cases where a repurchase right holder exercises the right of repurchase by delivering a copy of the complaint containing the 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, and thus the sale becomes effective between the repurchase right holder and the defendant. Therefore, even if the copy of the complaint containing the declaration of intention of repurchase is served to the defendant within the exclusion period, the repurchase right holder has lawfully exercised the right of repurchase within the exclusion period

However, according to the records of this case, the copy of the complaint of this case containing the plaintiffs' declaration of intention of repurchase was served on the defendant on March 31, 1996, which was the exclusion period of the right of repurchase, and before that, it can be known that the plaintiffs did not have made the defendant a declaration of intention of repurchase outside the court, the plaintiffs' right of repurchase has expired over the limitation period. Nevertheless, the court below rejected the defendant's assertion on the ground that the plaintiff exercised the right of repurchase at the time when the complaint containing the declaration of intention of repurchase was received by the court, and the copy of the complaint is not required to be served on the defendant. In so determining, the court below erred by misapprehending the legal principles as to the method of exercising the right of repurchase under Article 2 of the Addenda of the Act on Special Measures for Readjustment of Requisition Property, and therefore, the argument pointing this out is justified.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Sung-sung (Presiding Justice)