〈Case in which the issue was whether a right of repurchase arose under the application of the amended 「Act on Acquisition of and Compensation for Land, etc. for Public Works Projects」〉[Gong 2024Ha, 1759]

【Holding】

[1] Whether the scope of application of remedial legislation enacted pursuant to a decision of nonconformity to the Constitution extends retroactively to the time of the decision of nonconformity to the Constitution (affirmative in principle)

[2] Whether the scope of application of Article 91(1) of the ‘Act on Acquisition of and Compensation for Land, etc. for Public Works Projects,’ as amended by Act No. 18386 on August 10, 2021, may be limited on the basis of Article 3 of the Addenda (August 10, 2021) to the same Act (negative) / Where, before the date of the decision of nonconformity to the Constitution (November 26, 2020) concerning the portion ‘within 10 years from the date of acquisition of the land by agreement or the date of commencement of expropriation’ of Article 91(1) of the former ‘Act on Acquisition of and Compensation for Land, etc. for Public Works Projects,’ which limited the period during which a right of repurchase may arise, not only had the period for the arising of a right of repurchase under the same Act elapsed but the requirements for the arising of a right of repurchase had also been satisfied because the public necessity for the land had ceased to exist, and thereafter, before the enforcement of the amended ‘Act on Acquisition of and Compensation for Land, etc. for Public Works Projects,’ even the exclusion period under Article 91(1) of the former ‘Act on Acquisition of and Compensation for Land, etc. for Public Works Projects’ elapsed so that the right of repurchase was extinguished, whether the amended ‘Act on Acquisition of and Compensation for Land, etc. for Public Works Projects’ may apply (negative)

[3] Where a specific and direct determination on a matter asserted by a party is not indicated but whether the assertion was accepted can be discerned in light of the overall purport of the reasoning of the judgment, or where no determination was in fact made but it is clear that the assertion would be rejected, whether there can be said to be an illegality of omission of judgment (negative)

【Summary of Decision】

[1] Where a decision of nonconformity to the Constitution is rendered, unlike a decision of unconstitutionality, the constitutional state can be restored by awaiting legislative improvement and applying the improved legislation retroactively; however, since a decision of nonconformity to the Constitution is also a kind of decision of unconstitutionality, the effect of the decision arises from the date of the decision, and retroactive effect is recognized within the same scope as in the case of a decision of unconstitutionality. Accordingly, the scope within which remedial legislation enacted pursuant to a decision of nonconformity to the Constitution applies retroactively is also the same as the scope within which retroactive effect is recognized for a decision of unconstitutionality, and thus, absent special circumstances, it extends retroactively, as a rule, to the time of the decision of nonconformity to the Constitution.

[2] Article 3 of the Addenda (August 10, 2021) to the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, as amended by Act No. 18386 on August 10, 2021 (hereinafter the ‘amended Land Compensation Act’), is merely a provision that extends the application of the amended Land Compensation Act with respect to the period for exercising a right of repurchase and the like even to cases where a right of repurchase has already arisen and may be exercised, and cannot be regarded as a provision intended to limit the retroactive application of the amended Land Compensation Act. Accordingly, the scope of application of Article 91(1) of the amended Land Compensation Act cannot be limited on the basis of the above provision of the Addenda.

However, if, before the date of the decision of nonconformity to the Constitution (November 26, 2020) concerning the portion ‘within 10 years from the date of acquisition of the land by agreement or the date of commencement of expropriation’ of Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (before amended by Act No. 18386 on August 10, 2021; hereinafter the ‘former Land Compensation Act’), which limited the period during which a right of repurchase may arise, not only had 10 years elapsed from the date of acquisition of the land by agreement or the date of commencement of expropriation so that the period for the arising of a right of repurchase under the former Land Compensation Act had elapsed, but the requirements for the arising of a right of repurchase had also been satisfied because the public necessity for the land had ceased to exist, and thereafter, before the enforcement of the amended Land Compensation Act, even the exclusion period under Article 91(1) of the former Land Compensation Act elapsed so that the right of repurchase was extinguished, then, irrespective of the above decision of nonconformity to the Constitution, the possibility of exercising the right of repurchase had been conclusively foreclosed at the time of enforcement of the amended Land Compensation Act, and the amended Land Compensation Act cannot apply.

[3] In the reasoning of a written judgment, it suffices to indicate determinations on the parties' assertions and other means of attack and defense to the extent that the disposition can be found to be justified, and it is not necessary to make determinations on all of the parties' assertions or means of attack and defense (Article 208 of the Civil Procedure Act). Accordingly, even if a court's judgment does not indicate a specific and direct determination on a matter asserted by a party, there is no omission of judgment so long as it can be discerned, in light of the overall purport of the reasoning of the judgment, that the assertion was accepted or rejected; and even if no determination was in fact made, where it is clear that the assertion would be rejected, there is no effect on the outcome of the judgment and thus no illegality of omission of judgment.

【Referenced Statutes】

[1] Article 45 and Article 47(2) and (3) of the Constitutional Court Act [2] Article 91(1) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, Articles 1 and 3 of the Addenda thereto (August 10, 2021), Article 91(1) of the former Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (before amended by Act No. 18386 on August 10, 2021) [3] Articles 208 and 423 of the Civil Procedure Act

【Referenced Precedents】

[1] Constitutional Court Decision 2002Hun-Ga22, 2002Hun-Ba40, 2003Hun-Ba19, 46, January 29, 2004 (Full Bench) (Hun-Gong 89, 221)
[3] Supreme Court Decision 2011Da87174, April 26, 2012 (Gong 2012Sang, 863)

(Source: Supreme Court Decision 2024Da241510, October 8, 2024 [Registration of Transfer of Ownership] > Comprehensive Legal Information, Precedents)