Plaintiff (Non-party 1 of the judgment of the Supreme Court) (Law Firm Dongdong, Attorneys Choi Jong-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 (Appointed Party)

Defendant 2

Suwon District Court Decision 2010Kahap1647 Decided November 3, 2010

July 13, 2011

1. Of the judgment of the court of first instance, the part against Defendant 1 and Appointed 2 (Defendant 3 of the judgment of the Supreme Court) shall be revoked.

2. The Defendant (Appointed Party) 1 and the Appointed 2 shall notify the Republic of Korea of the fact that he/she transferred to the Plaintiff the status that he/she would purchase from the Republic of Korea the 22,662m2m2 (number 1 omitted) miscellaneous land from the Republic of Korea pursuant to Article 20-2(1) of the Act on Special Measures for the Adjustment of Requisition Property.

3. All appeals filed against Defendants 2 and 3 (Defendant 4 of the Supreme Court Decision) are dismissed.

4. The total cost of the litigation incurred between the Plaintiff, the Defendant (Appointeds) 1 and 2 shall be borne by the Defendant (Appointeds) 1 and 2, and the costs of appeal against the Plaintiff 2 and Appointeds 3 shall be borne by the Plaintiff.

Defendant (Appointed Party) 1 (hereinafter referred to as Defendant (Appointed Party) and Appointed 2: It is marked as Disposition No. 1 and 2.

Defendant 2 (hereinafter referred to as Defendant 2) and Appointors 3: The part against Defendant and Appointors 3 in the judgment of the first instance shall be revoked. The Defendant and Appointors 3 notify the Republic of Korea that they transferred to the Plaintiff the status of purchasing 22,662 square meters from the Republic of Korea at the court of Pakistan-si pursuant to Article 20-2(1) of the Act on Special Measures for the Adjustment of Requisition Property.

1. Facts of recognition;

A. The land was originally owned by Nonparty 2 and the registration of ownership was completed in the name of the same day, which was requisitioned by the State on March 17, 1971.

B. On April 19, 1982, after the completion of the redemption of the securities received by the State as the purchase price for the instant land and creative land, Nonparty 2 transferred to the Plaintiff the right of repurchase and related rights that can be redeemed by the State pursuant to Article 20(1) of the former Act on Special Measures for Readjustment of Requisitiond Property (amended by Act No. 4144 of Dec. 21, 1989; hereinafter “former Requisitiond Property Act”) and all rights to purchase the land of this case and creative land from the State (hereinafter “transfer of this case”).

C. Repurchase rights based on Article 20(1) of the former Requisitioned Property Act with respect to the instant land and creative land were extinguished upon the lapse of the period for exercising the repurchase rights. However, Article 20-2(1) newly established due to the amendment of Act No. 414 on December 21, 1989 to the Act on Special Measures for Readjustment of Requisitioned Property by Act No. 414 of Dec. 21, 1989 provides, “If all or part of the pertinent property becomes unnecessary for military purposes after the lapse of five years from the date of redemption of the securities paid for the purchase price of requisitioned property purchased under this Act, the State may sell it at the market price at the time of sale by a negotiated contract notwithstanding the provisions of the State Property Act.”

D. On February 8, 2010, the head of the 25th Assistant Disease Group notified Defendant (Appointed Party), 2, 3, and Defendant (hereinafter referred to as “Defendants”) of the decision to sell the instant land under a negotiated contract (hereinafter referred to as “instant notification”). At that time the Defendant and the Appointed 3 received the instant notification. Thereafter, the Defendant filed an application for the purchase of the instant land (hereinafter referred to as “instant application for purchase”) around April 2010 (hereinafter referred to as “instant application for purchase”). At the same time, the Defendant filed an application for the purchase of the instant land with three designated applicants without the delegation of 3 designated applicants).

E. Meanwhile, the non-party 2 died on July 9, 1984, and the Defendants jointly inherited the non-party 2’s property.

[Ground of recognition] The facts without dispute, Gap evidence No. 1, Eul evidence No. 2, Eul evidence No. 4-1, 2, Eul evidence No. 4-2, Eul evidence No. 4-2, Eul evidence No. 12 [the defendant (appointed party) and the defendant alleged that Gap evidence No. 1 (the repurchase right interest and transfer/acquisition contract), and Eul evidence No. 4-1 (the delegation contract) were forged, but it is not sufficient to recognize Eul's evidence No. 11 only, and since there is no other evidence to acknowledge it, the above assertion is rejected). The purport of the whole argument is as follows.

2. Determination

A. Determination on the cause of the claim

1) Effect of the transfer of this case

In light of the purport and process of the transfer agreement of this case as revealed in the above facts, and the purpose of the transfer agreement of this case and the transfer/acquisition right and the sale/acquisition contract (Evidence A) prepared at the time of the transfer of this case, the defendant (appointed party) and the defendant asserted that the above part was additionally recorded after the transfer of this case, but the non-party 2's seal (it is recognized that the above seal is the same as the seal affixed on the non-party 2's seal impression) is properly affixed to the part that the above part is terminated, considering that the non-party 2's seal impression (as the above seal is stated in the evidence No. 11, according to the non-party 2's seal impression No. 11, it is not sufficient to recognize that the above part was modified, and the above assertion is not acceptable since there is no other evidence to acknowledge it otherwise, the right to repurchase right transferred by the government to the plaintiff on April 19, 1982 shall include the right to repurchase right of this case under a free contract of this case under Article 20 (1).

2) Transfer of claims

In addition, the fact that the State notifies the Defendants, the heir of Nonparty 2, the requisitioned, pursuant to Article 20-2(1) of the Act on Special Measures for Readjustment of Requisitioned Properties, of the sale decision by a negotiated contract, is recognized as above. Therefore, the Defendants, the heir of Nonparty 2, are obligated to notify the Republic of Korea of the fact that the Defendants, upon the transfer of this case between Nonparty 2 and the Plaintiff, transferred the status of the State to purchase the instant land by a negotiated contract under Article 20-2(1) of the Act on Special Measures for Readjustment of Requisitioned Properties.

B. Determination as to Defendant (Appointed Party)’s assertion

The defendant (Appointed Party) asserts that since the defendant (Appointed Party) and the appointed party 2 and 3 did not file an application for purchase of the instant land, they cannot respond to the plaintiff's request.

As long as the head of the 25th Sick Disease Group notified the Defendants of the decision to sell the instant land by a free contract, even if that notification reached only the Defendant and the 3 appointed parties, and did not reach the Defendant (appointed parties) and the 2nd 3rd son, the Plaintiff does not exercise the right to purchase the instant land by a free contract (see Supreme Court Decision 2006Da39836, Nov. 23, 2006).

However, Article 20-2 (3) of the Act on Special Measures for Readjustment of Requisitioned Property provides that "the Minister of National Defense shall, if any property to be sold under the provisions of paragraph (1) has occurred, notify the person requisitioned or his/her heir of the purport without delay: Provided, That if the address or residence of the person requisitioned or his/her heir is unknown, it shall be publicly notified at least twice in two kinds of daily newspapers or more." Paragraph (4) of the same Article provides that "if the person requisitioned or his/her heir is notified under the provisions of paragraph (3) or he/she fails to make an application for purchase within three months after the last public notification is completed, it shall be deemed to have waived such purchase." As seen above, Article 20-2 (3) provides that "If the person requisitioned or his/her heir is notified under the provisions of paragraph (3) or within three months after the last public notification is received on February 8, 2010, it shall not be deemed that there has been an application for purchase of the land in this case within three months after the expiration of the two months period of the notification.

The defendant (appointed party)'s above assertion is justified only for the part concerning the appointed party 3, and the remainder is without merit.

C. Judgment on the defendant's argument

The defendant asserts that since the application for purchase of this case was withdrawn, the plaintiff cannot respond to the plaintiff's request.

According to the evidence Nos. 6 and 7, the defendant received a statement of withdrawal of the purchase application of the number stating his/her intention to withdraw the application for the purchase of this case to the head of the 25th class of the 25th class of the disease insurance group around April 18, 2011 (the defendant shall withdraw the application for the purchase of this case at his/her own discretion by coercion of the defendant (appointed party) and the appointed party 3, etc., but he/she shall withdraw the application for the purchase of this case at his/her own discretion, and he/she shall withdraw the application for the purchase of this case at his/her own discretion. Thus, the defendant received the withdrawal of the above number of the purchase application with the intention to withdraw the application for the purchase of this case due to mistake by coercion of the defendant (appointed party) and the appointed party 3, etc., and the defendant's above assertion shall not be accepted).

According to the above facts, the application for the purchase of this case is valid and the defendant does not make an application for the purchase of the land of this case within three months after receipt of the notification of this case around February 8, 2010. Even if the notification of this case reveals that the specific status of the defendant can purchase the land of this case under a negotiated contract, the above specific status has already ceased to exist after three months from the arrival of the notification of this case. Thus, the defendant's above assertion is justified.

D. Sub-committee

Therefore, the Defendant (Appointed Party) and the Appointed 2 are obligated to notify the Plaintiff that the instant land was transferred to the Republic of Korea pursuant to Article 20-2(1) of the Act on Special Measures for the Adjustment of Requisitioned Property.

3. Conclusion

Therefore, the plaintiff's claim against the defendant (appointed party) and Appointee 2 shall be accepted on the ground of its reason, and the claim against the defendant and Appointer 3 shall be dismissed on the ground of its ground. Since the part against the defendant (Appointed party) and Appointer 2 in the judgment of the court of first instance as to the above part is unfair on the ground of its conclusion, the plaintiff's appeal as to the above part shall be accepted and it shall be revoked, and the above notification shall be ordered to the defendant (Appointed Party) and Appointer 2, and the part against the defendant and Appointer 3 shall be justified on the ground of its conclusion, the plaintiff's appeal as to the above part shall

[Attachment List of Appointed]

Judges Cho Jae-young (Presiding Judge)