Whether the person subject to requisition may exercise the right of repurchase when the military needs to continue the use of the requisitioned land during the occurrence of the right of repurchase due to the lack of military necessity for continuous use of the requisitioned land (negative)

Even though the requisitioned person caused a redemptive right to purchase the land preferentially because there is no military necessity to continue to use the requisitioned land, if the requisitioned person continues to use the land continuously because it is necessary for the military to continue to use the land for the performance of military operations during the period in which the requisitioned person exercises his/her right, the requisitioned person shall not exercise his/her right to repurchase.

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

Plaintiff 1 and 2 others, Counsel for the plaintiff-appellant and one other, Counsel for the plaintiff-appellant-appellee)

Korea

Seoul Civil District Court Decision 91Na11048 delivered on November 22, 1991

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

1. Summary of the reasoning of the judgment below

The lower court determined that the Defendant had been using the land of this case and its neighboring military base No. 128 as the site of the 128th unit under the Defendant’s control of the land of this case for the purpose of removing the above land for the purpose of removing the above 17th unit and the 126th unit 10th unit 2th unit 7th unit 7th unit 7th unit 7th unit 9th unit 8th unit 9th unit 6th unit 9th unit 7th unit 9th unit 196 unit 7th unit 9 unit 9th unit 7th unit 7th unit 198 unit 9 unit 9th unit 6th unit 8th unit 196 unit 9 unit 9th unit 196 unit 9th unit 1987 unit 9th unit 9th unit 6th unit 1987 unit 9th unit 198th unit 198th unit 198.

2. Judgment on the ground of appeal No. 1 by the plaintiffs' attorney

If the facts are duly determined by the court below, since the present land of this case needs to be used continuously by the military due to military tension, it cannot be viewed that there was an error of law by misunderstanding the legal principles on the military necessity under the Act on Special Measures for Readjustment of Requisitioned Property, such as the theory of lawsuit, and therefore, there is no reason to discuss.

3. Determination on the ground of appeal No. 2

Around December 1980, when all the military buildings constructed above the instant land and its neighboring land were removed and their parking units were removed, even if the Plaintiffs were to have a redemptive right to purchase the instant land first because it was no military necessity to continue to use the instant land, such as a novel, and the Plaintiffs were to have a preferential right to purchase the instant land, if the Plaintiffs were to continue to use the instant land for military operations during the period when they were not exercising their rights, and as such, the Gun continued to use the instant land for military operations, the Plaintiffs should not exercise their right to repurchase.

4. Determination on the ground of appeal No. 3

On the premise of facts duly confirmed by the court below, the Minister of National Defense failed to give notice under Article 20 (2) of the same Act, and the defendant's assertion that the military needs to continue to use the land of this case cannot be deemed to violate the principle of good faith, such as the theory of lawsuit. Thus, the court below's decision to criticize that there was an error of law by misunderstanding the legal principles as to Article 2 of the Civil Act, is not acceptable.

5. Therefore, all appeals are 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 Yoon Jae-ho (Presiding Justice)