Plaintiff (Attorney Kim Hyun-hwan, Counsel for plaintiff-appellant)

Korea Rural Community Corporation (Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

April 17, 2009

Gwangju District Court Decision 2005Kahap4569 Decided November 15, 2007

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to be paid next shall be revoked.

The defendant shall pay to the plaintiff 81,849,515 won and 10,947,600 won among them, 5% per annum from November 17, 1997; 70,901,915 won per annum from April 15, 1999 to May 15, 2009; and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion ordering the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 309,53,922 and KRW 111,024,00 from November 17, 1997 to the delivery date of each complaint of this case from April 15, 1999 to the delivery date of each of the complaint of this case and KRW 198,509,922 from the next day to the full payment date of the complaint of this case (the plaintiff voluntarily withdraws the main claim seeking the implementation of the procedure for the registration of ownership transfer for real estate stated in the separate sheet of this case from the trial to the full payment date, and reduce the remainder of the claim).

1. Basic facts

A. The Defendant has obtained authorization for the implementation of the Yeongsan River Basin Agricultural Development Project (hereinafter “instant project”) under the Yeongsan River Basin Development Project (hereinafter “YYY”) around 1987 under the former Agricultural Community Modernization Promotion Act, 1987, 20,932 square meters, 30,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00.

B. The Plaintiff filed a claim for redemption against the Defendant around February 2004 on the ground that each land listed in the separate sheet (hereinafter “instant land”) became unnecessary for the instant project, but the Defendant rejected the claim on the ground that the period of redemption expired on the 24th of the same month.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 through 7, 40 evidence and 41 (including each number), the purport of the whole pleadings

2. The parties' assertion

The Plaintiff asserts that even though the instant land is no longer necessary for the instant project and is subject to repurchase due to the installation of the facilities installed in the △△ Do adjacent to the instant land, the Defendant sought compensation for damages from the Defendant on the ground that the Plaintiff’s repurchase right has ceased to exist due to the lapse of the exclusion period by failing to notify the Plaintiff of the occurrence of the repurchase right. Accordingly, the Defendant asserts that, as the instant land only changes the detailed purpose of use, and the instant project is still underway, it cannot be said that the instant land is unnecessary for the public project, and even if the Plaintiff’s repurchase right was created, the damage claim arising from the Defendant’s failure to notify of the occurrence of the repurchase right has expired by the extinctive prescription.

3. Determination

A. Whether a repurchase right has been created

(1) The purpose of Article 9(1) of the Act on Special Cases Concerning the Settlement of Land, etc. lies in the restoration of ownership of the land, etc. according to the original owner’s intent when the original owner of the land, etc. does not lose ownership of the land, etc. even though the original owner of the land, etc. received lawful compensation for losses from the project implementer for the price of the land, etc., and thus no longer need to use the land, etc. for the relevant public project. In other words, when the need for public interest ceases to exist, the term “the relevant public project” under Article 9(1) of the Act on Special Cases Concerning the Settlement of Land, etc., which provides for the requirements for repurchase right, refers to the specific public project that is the objective of acquiring the land through consultation. The term “where all or part of the acquired land, etc. becomes unnecessary” means the case where the land, etc. acquired by the project implementer becomes unnecessary” means the case where it becomes unnecessary to use the land for the purpose of acquisition by consultation, not subjective standards for the project implementer’s intention.

(2) According to the overall purport of the pleadings, the Defendant intended to use part of the instant land as the site for the instant project (excluding 7,700 square meters), 152,546 square meters, 65 square meters in total, 30 square meters in 20 square meters in 20 square meters in 20 square meters in 20 square meters in 20 square meters in 200, 1200 square meters in 30 square meters in 5 square meters in 5 square meters in 20,2000, 2000 square meters in 20 square meters in 30 square meters in 5 square meters in 20,200,200 square meters in 5 square meters in 20,200 square meters in 12,200 square meters in 30 square meters in 20,0000 square meters in 40 square meters in 30,0000 square meters in 20,000 square meters in 200.

(3) The acquisition by consultation and expropriation of the land for the Domined Public Works should be limited to a minimum extent; current status plates, completion towers, parking lots, drinking fountains, toilets, and toilets are merely incidental facilities which do not directly contribute to the creation of farmland infrastructure, water resources, expansion of land resources, modernization of farming, increase of farm income, and improvement of land transport, which are the original purpose of the project in this case; the part of the already installed road and the land from the sea can perform the functions of an external tide embankment asserted by the defendant only; and landscape trees and turfing trees asserted by the defendant as the purpose of acquiring the land in this case are excluded from the above incidental facilities for the purpose of acquiring the land in this case, and it is difficult to view that there is no need to install the parking lot, toilets, drinking fountain, etc. on the land in this case separately from the facilities installed in △△△ Province, and there is no need to collect earth and rocks from the land in this case for the purpose of constructing the land in this case, and there is no need to use the land in this case to implement the land in this case more than 10 years.

(4) Therefore, the remaining land, excluding the portion acquired by agreement with Jeonnam-do in the instant land, namely, 403 square meters in the mountain (number 2 omitted), 18,246 square meters in mountain (number 3 omitted), 6,825 square meters in mountain (number 4 omitted), and 27,219 square meters in mountain (number 5 omitted), which meet the requirements for repurchase under the Act on Special Cases Concerning the Development of Land, is deemed to be the land subject to repurchase.

(b) Occurrence, etc. of damage liability;

(1) The purport of Article 72(1) of the former Land Expropriation Act (amended by Act No. 656), which applies mutatis mutandis under Article 9(5) of the Act on Special Cases, is to ensure the effectiveness of the exercise of the right of repurchase which is naturally recognized as a matter of law by first notifying the original owner of the land, if there is any land that is no need for public interest in light of the legislative reason of the provision of the right of repurchase, such as the request for at least the public burden, the necessity to protect the original owner who has lost ownership in a non-voluntary manner, and the principle of fairness, and by requiring the project operator to notify the original owner of such land of whether the land should be repurchased. Thus, the above provision is not a mere declaration, but a legal obligation of the project operator under the Act on Special Cases to notify or make a public announcement under the above provisions, even though the project operator has a duty to notify or make a public announcement to the original owner, etc., who violated such duty, thereby making it impossible for him/her to exercise the right of repurchase by 104.

In the instant case, the Defendant voluntarily recognized that there was no notification or announcement of the occurrence of the right to repurchase with respect to the instant land by the Plaintiff, and according to the evidence as seen earlier, the Plaintiff could be deemed to have failed to exercise the right to repurchase to the extent that the exercise period of the right to repurchase expires. Accordingly, the Defendant is liable to compensate the Plaintiff for damages arising from the loss of the right to repurchase.

(2) As to this, the Defendant asserts that the damage claim was extinguished by prescription when the Plaintiff was aware of the occurrence of the right of repurchase on November 1, 1996 established in △△△△ Province and when three years elapsed thereafter. The “date on which the victim became aware of the damage and the perpetrator” under Article 766(1) of the Civil Act, which is the starting point of the short-term extinctive prescription of the right of claim for damages, refers to the time when the victim actually and specifically recognized the facts of the tort, such as the occurrence of damages, the existence of illegal harmful act, and proximate causal relation between the harmful act and the occurrence of the damage. Whether the victim is deemed to have actually and specifically recognized the facts of the requirements of the tort should be reasonably acknowledged by taking into account various objective circumstances in each individual case and taking into account the situation in which the claim for damages was practically possible. The victim’s subjective attitude, namely, the time when the victim, the right holder, who claimed the profit of prescription, bears the burden of proving it (see, e.g., Supreme Court Decision 2005Da434064.

Considering that the Defendant was aware of the establishment of a completion tower, etc. in △△Do as a result of a change in the detailed plan for the instant project, it is difficult to deem that the Plaintiff was aware of the occurrence of the repurchase right. Moreover, there is no evidence to support that the Plaintiff was unable to exercise the repurchase right due to the Plaintiff’s failure to notify or publicly announce the claim before February 2004, which was rejected, and that the Defendant was aware of the fact that the Plaintiff was able to claim damages therefrom. Thus, the above assertion by the Defendant is rejected.

C. Scope of damages

The amount of damages due to the loss of the right of repurchase by the original owner, etc. under the Special Act on the Settlement of Special Cases shall be determined by deducting the redemption price to be returned when the person who has the right of repurchase exercises the right of repurchase from the market price of the object at the time of loss of the right of repurchase. Thus, if the amount of appraisal of the object of repurchase at the time of loss of the right of repurchase is less than or equal to the amount paid by multiplying the appraisal price rate of neighboring similar land unrelated to the relevant project until the time by the fluctuation rate of neighboring land unrelated to the relevant project, it shall be calculated by deducting the above appraisal amount, but if it exceeds this amount, it shall be calculated by deducting the above "compensation paid" from the appraisal amount at the time of loss of the right of repurchase - (the appraisal amount at the time of loss of the right of repurchase - the appraisal amount at the time of loss of the right of repurchase - the compensation paid x the amount calculated by multiplying the inflation rate of neighboring land at the time of such loss (see Supreme Court Decision

The Defendant’s compensation for the instant project is KRW 3,649,20,00 (i.e., KRW 4,186,40) x 18,20,00 for the instant land with an amount exceeding 18,246 square meters (i.e., KRW 18,246/20, KRW 932; hereinafter the same shall apply) up to 18,825 square meters for each of the instant land (number 4 omitted); KRW 8,82,500 for the instant land (21,36,800 x 6,825/16,000) ; KRW 29,000 for each of the instant land at the time of 20,000 square meters ; KRW 164,000 for each of the instant land (number 2 omitted); KRW 27,219,000 for each of the instant land at the time of 36,000 square meters x 964,798,00

Therefore, the Plaintiff’s loss due to the extinguishment of a repurchase right is KRW 10,947,60 with respect to 18,246§³ of the instant land (number 3 omitted) (i.e., compensation amount of KRW 3,649,200 x inflation rate of land 300 x inflation rate of KRW 300 x), and KRW 6,825 m27,219 m3 out of mountain (number 2 omitted), and KRW 70,825 m27,901,915 [20,872,500 + KRW 35,908,600) x 150 m20,000 per annum from the following day of this case’s land price increase rate of KRW 81,849,515 x 300 m295 m20,000 per annum, the Defendant shall not accept the Plaintiff’s claim for repurchase right to KRW 9719,709.15 m.75 m.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the plaintiff's appeal of this case shall be accepted within the above scope of recognition, and it is so decided as per Disposition with the assent of all.

[Attachment Form omitted]

Judges Cho Jae-sung (Presiding Judge)