[1] Whether a lawsuit seeking confirmation of the existence of a redemptive right under Article 91 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects and a lawsuit seeking an increase or decrease of the repurchase amount under Article 91 (4) of the same Act constitutes a civil lawsuit (affirmative)

[2] The meaning of the exercise period for the repurchase right under Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects

[1] Article 91 of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 10239, Apr. 5, 2010) / [2] Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (Amended by Act No. 10239, Apr. 5, 2010)

[2] Supreme Court Decision 2010Da30782 Decided September 30, 2010 (Gong2010Ha, 1987)

Korea Water Resources Corporation (Law Firm Docheon, Attorneys Yu-min et al., Counsel for the defendant-appellant)

Defendant (Law Firm Barun, Attorneys Park Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu3369 decided October 7, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 91 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor (amended by Act No. 10239, Apr. 5, 2010; hereinafter “former Public Works Act”) provides that a repurchase right under Article 91 of the former Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor is effective if it is exercised within the period prescribed by the said provision, regardless of whether it is judicial or extra-judicial (see Supreme Court Decision 2007Da24893, Jun. 26, 2008). A lawsuit seeking confirmation of whether a repurchase right exists and a lawsuit seeking an increase or decrease of the repurchase amount under Article 91(4) of the former Public Works Act constitutes a civil lawsuit.

According to the records, the main claim of this case is a lawsuit seeking confirmation of existence of a redemptive right in accordance with Article 91 of the former Public Works Act, and the conjunctive claim is a lawsuit seeking an increase of the redemption price in accordance with Article 91 (4) of the same Act. Thus, each of the above lawsuits shall be deemed a civil lawsuit.

Therefore, the lower court erred by misapprehending the legal doctrine on party litigation under public law in determining that each of the above lawsuits was a party litigation under Article 3 subparag. 2 of the Administrative Litigation Act.

However, according to the records, even though the lawsuit of this case, which is a civil suit, was filed with the Seoul Administrative Court, the defendant did not assert that it is in violation of jurisdiction at the first instance court, and the defendant made a pleading on the merits. Thus, in light of the fact that it is difficult to distinguish whether it is a party lawsuit under public law or a civil case, and that if it is difficult to distinguish it, in the trial procedure of an administrative case, the special provisions prescribed by the Administrative Litigation Act can be applied in consideration of the special characteristics of the administrative litigation, there is no big difference from the civil procedure in the trial procedure, it is reasonable to deem that the pleading has been made with the first instance court in accordance with Article 8

Therefore, the court below erred by misapprehending the legal principles as to party litigation, but as long as the court of first instance had jurisdiction over pleading as seen earlier, the court below's error does not affect the conclusion of the judgment. The defendant's ground of appeal pointing this out is without merit.

2. Regarding ground of appeal No. 2

Article 91(1) of the former Public Works Act provides, “Where all or part of the acquired land becomes unnecessary due to the discontinuation, alteration or other causes of the relevant project within 10 years from the date of acquisition through consultation or the date of expropriation of the land (hereafter referred to as “acquisition date” in this Article), the landowner at the time of the acquisition date or his/her general successor (hereinafter referred to as “re-purchase right holder”) may repurchase the land by paying to the project operator an amount equivalent to the compensation paid for the relevant land, within one year from the date all or part of the relevant land becomes unnecessary or within 10 years from the date of acquisition, and the meaning of the above provision is within 10 years from the date of acquisition, where the relevant land becomes unnecessary, the repurchase right holder may exercise the re-purchase right within one year from the date of acquisition from the date of acquisition, and where 10 years have not elapsed since the date of acquisition, the repurchase right holder may exercise the re-purchase right lawfully (see Supreme Court Decision 2010Da3782, Sept. 30, 2010).

According to the reasoning of the judgment below and the record, the plaintiff accepted the land of this case on August 4, 1998 for the metropolitan waterworks business on the date of expropriation and continued to use the existing waterworks pipelines installed on the land of this case as wide-area waterworks in the commercial site district for the purpose of July 30, 2008, and suspended its use on July 30, 2008. The defendant deposited 67,458,300 won with the redemption price on August 13, 2008 and exercised its repurchase right around that time.

Examining these facts in light of the above legal principles, the instant land was no longer necessary within 10 years from the date of acquisition, and as long as the Defendant exercised the right of repurchase within one year from the time of acquisition, the Defendant’s exercise of the right of repurchase should be deemed lawful.

Nevertheless, the court below determined that the defendant's right to repurchase was extinguished by the expiration of the exclusion period by depositing the amount equivalent to the compensation after the lapse of 10 years from the date of expropriation of the land in this case, on the grounds as stated in its reasoning. This decision of the court below is erroneous in the misapprehension of the legal principles as to the exercise period of the right to repurchase, which affected the remaining judgment. Accordingly, the ground of appeal

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)