[1] In the absence of a notice of repurchase by the Minister of National Defense under Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993), the exclusion period of repurchase rights under the same Article

[2] In a case where the Minister of National Defense did not notify or give public notice of repurchase under Article 2 of the Addenda to the Act on Special Measures for Readjustment of Requisitioned Property ( December 27, 1993) or caused loss to the repurchase right holder by causing the repurchase right holder to lose the repurchase right by exceeding the exercise period of the repurchase right, whether a tort is established

[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) is three months from the date of receipt of the notification when he receives the notification from the Minister of National Defense under Article 20 (3) of the same Act, and if there is no notification from the Minister of National Defense, he shall be given consideration for the person whose right of repurchase is extinguished with the expiration of the limitation period to re-exercise the right of repurchase in favor of the person whose right of repurchase is extinguished due to the lapse of the limitation period, and in light of the need for stabilizing the legal relationship thereof, and the balance between the cases where the Minister of National Defense notifies the Minister of National Defense of such fact, the time limit during which the right of repurchase can finally exercise the right of repurchase is not until March 31, 196.

[2] In order to ensure effectiveness of the exercise of the right of repurchase under Articles 2(3) and 20(2) of the Addenda of the Act on Special Measures for Readjustment of Requisitioned Property (amended by Presidential Decree No. 13588, Dec. 27, 1993) as long as the Minister of National Defense provides for the duty of notification or announcement to the repurchase right holder pursuant to the above provision, since the duty of notification or announcement to the Minister of National Defense is a legal obligation to ensure effectiveness of the exercise of the right of repurchase, if the Minister of National Defense fails to comply with such duty and causes damage to the repurchase right holder by making the repurchase right holder lose the right of repurchase by making the exercise of the right of repurchase unreasonable

[1] Article 20 (3) of the Act on Special Measures for Readjustment of Requisitioned Property, Article 2 of the Addenda ( December 27, 1993) / [2] Article 20 (3) of the Act on Special Measures for Readjustment of Requisitioned Property, Article 2 of the Addenda ( December 27, 1993) of the Act on Special Measures for Readjustment of Requisitiond Property, Article 750 of the Civil Code

[1] Supreme Court Decision 94Da27748 delivered on August 25, 1995 (Gong1995Ha, 3260) Supreme Court Decision 97Da1664 delivered on June 27, 1997 (Gong1997Ha, 2366)

Plaintiff 1 and one other (Attorney Seo-gu et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2005Na71101 decided May 17, 2006

Of the lower judgment, the part on Plaintiff 1 and the part on Plaintiff 2’s ancillary claim are reversed, and that part of the case is remanded to the Seoul High Court. Plaintiff 2’s remaining appeal is dismissed.

1. As to the exclusion period of the repurchase right under Article 2 of the Addenda of the former Act on Special Measures for Readjustment of Requisitioned Property (amended by Act No. 4618, Dec. 27, 1993; hereinafter “former Act”)

The period during which the Minister of National Defense may exercise the right of repurchase under Article 2 of the Addenda to the former Requisitioning Property Adjustment Act shall be three months from the date of receipt of the notification when he receives the notification from the Minister of National Defense under Articles 20 (3) and 20 (3) of the same Act, and when there is no notification from the Minister of National Defense, the fact that the right of repurchase under Article 2 of the Addenda to the same Act gives consideration to a person whose right of repurchase is extinguished upon the lapse of the limitation period so that the right of repurchase may be re-exercise the right of repurchase mutually, and the legal relationship related thereto shall belong to the need to be stable, and a balance between the cases where the Minister of National Defense notifies the Minister of National Defense of such fact, it shall be reasonable to deem that the last time period during which the right of repurchase can be exercised is by March 31, 1996 (see Supreme Court Decisions 94Da2748, Aug. 25, 195; 98Da39428, Nov. 12, 1999).

The court below determined that the right to repurchase under Article 2 of the Addenda to the former Requisitioned Property Adjustment Act ceases to exist after the lapse of March 31, 1996, even in the absence of the notice or public notice by the Minister of National Defense. Thus, even if the notice or public notice against the plaintiffs was unlawful, the right to repurchase on the land of this case by the plaintiffs under the above Addenda clause was extinguished upon the lapse of March 31, 1996, and rejected the plaintiff 1's assertion and the primary claim by the plaintiff 2. The above decision of the court below is justified in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to the limitation period of the right to repurchase under Article 2 of the Addenda to the former Requisitioned Property Adjustment Act, contrary to the allegations in the grounds of appeal

2. As to the establishment of tort due to the violation of the duty of notification and public notice under Article 2 of the Addenda to the former Adjustment of Requisitioned Property Act

The court below determined that even if the Minister of National Defense did not make a lawful notification or public announcement of repurchase under Article 2 of the Addenda to the former Act on the Adjustment of Requisitioned Property, he did not exercise the right of repurchase and did not purchase the land of this case under a private contract without exercising the right of repurchase, damages equivalent to the difference in the price thereof, Plaintiff 1’s assertion that Plaintiff 2 suffered losses on the extinction of the right of repurchase, and Plaintiff 2’s conjunctive claim, the court below held that Article 2 of the Addenda to the former Act on the Adjustment of Requisitiond Property provides consideration to allow the person whose right of repurchase has already been extinguished due to the lapse of the exclusion period to re-exercise the right of repurchase, and even if there was no notice of the Minister of National Defense, the period of exercise of the right of repurchase is limited to March 31, 196, the Minister of National Defense determined that even if the Defendant did not properly make a notification or public announcement under Article 2 of the Addenda to the former Act on the Adjustment of Requisitiond Property.

However, we cannot accept the above decision of the court below for the following reasons.

Even if the legislative purport of Article 2 of the Addenda to the former Requisitioned Property Adjustment Act is to give consideration to the person for whom the right of repurchase has been extinguished in preference to exercise the right of repurchase, as long as Article 2(3) and Article 20(2) of the Addenda to the former Requisitioned Property Adjustment Act provides for the duty of notice or public notice to the Minister of National Defense in order to guarantee the effectiveness of the exercise of the right of repurchase, the obligation of the Minister of National Defense to give notice or public notice to the repurchase right pursuant to the above provision shall not be deemed to have provided the legal obligation of the Minister of National Defense. Thus, if the Minister of National Defense fails to give notice or public notice without violating the said obligation and does not give notice or public notice, or if such notice or public notice causes damage to the exercise of the right of repurchase by allowing the repurchase right holder to exercise the right of repurchase due to its illegality

Nevertheless, the court below rejected Plaintiff 1’s assertion and Plaintiff 2’s conjunctive claim without examining whether this case’s notice is legitimate and whether it is intentional or negligent by the Minister of National Defense, and the causal relationship with the damage of the Minister of National Defense. Thus, the court below erred by misapprehending the legal principles on the duty of notification or public notice to the repurchase right holder under Article 2 of the Addenda to the former Act on the Adjustment of Requisition, and failing to exhaust all necessary deliberations, and it clearly affected the judgment.

3. Conclusion

Therefore, among the judgment of the court below, the part on Plaintiff 1 and the part on the conjunctive claim by Plaintiff 2 are reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeal by Plaintiff 2 is dismissed. It is so decided as per Disposition by the assent of all participating

Justices Kim Ji-hyung (Presiding Justice)