[토지소유권이전등기][공1991.8.15.(902),2000]
(a) Whether a lawsuit seeking implementation of the procedure for transfer registration of ownership is lawful on the ground of an agreement to transfer part of land acquired after completion of construction with a reclamation license for public waters, which is not authorized as of the date of closing argument at the fact-finding court (negative);
B. Whether an agreement to implement the procedure for reporting the change of the name of the applicant for reclamation of public waters is included in the agreement under the above Paragraph (a) (negative)
A. According to Articles 12 and 14 of the Public Waters Reclamation Act, a reclamation licensee of public waters provides that he/she shall acquire ownership of remaining reclaimed land except reclaimed land at the time of application for authorization of completion, except reclaimed land necessary to use for public or public use after completion of reclamation works by the relevant authorities, as part of reclaimed land except reclaimed land at the time of application for authorization of completion, and which belongs to the State among reclaimed land equivalent to the project cost required for reclamation and other remaining reclaimed land, etc. before authorization of completion is granted. Thus, before authorization of completion is granted, the location and area of the land to be acquired by the reclamation is not specified. Thus, a lawsuit seeking the registration of ownership transfer cannot be accepted by specifying the claim, which fails to meet the requirements for protection of rights.
B. It cannot be deemed that an agreement to implement the procedure for reporting the change of the name of the applicant for reclamation of public waters is included in the agreement under the above paragraph (a).
(a)Article 12 and Article 14(a) of the Public Waters Reclamation Act. Article 226 of the Civil Procedure Act b. Article 105 of the Civil Code;
A. Supreme Court Decision 90Da17057 delivered on June 25, 1991 (dong)
[Judgment of the court below]
[Defendant-Appellant] Gyeong-jin, Counsel for defendant-appellant
Busan High Court Decision 90Na4679 delivered on October 25, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
1. On the first ground for appeal
According to the facts established by the court below, the real estate in dispute for which the plaintiff sought the execution of the procedure for ownership transfer registration by the main claim of this case is a public water surface, and the defendant started the reclamation work on or around June 11, 1990 after obtaining a reclamation license from the authorities concerned on August 26, 198, but not yet completed, and there are parts that are still in the state of public water as of the closing date of the argument of the court below.
According to Articles 12 and 14 of the Public Waters Reclamation Act, the reclamation licensee of public waters provides that the reclamation licensee shall acquire the ownership of remaining reclaimed land except reclaimed land required by the license holder at the time of application for authorization of completion from the relevant authorities after completion of reclamation works to use for public or public use, with the exception of ownership of reclaimed land equivalent to the project cost incurred for such reclamation and ownership of other remaining reclaimed land except reclaimed land belonging to the State among the remaining reclaimed land. Thus, even if the location and area of the land to be acquired by the Defendant is not specified in the present condition before authorization of completion, the Plaintiff’s claim cannot be accepted by specifying the Plaintiff’s claim even if the Plaintiff claims as the cause of the primary claim in this case because the location and area of the land to be acquired is not specified in the present condition before the authorization of completion.
The court below's decision to the same purport and affirmed the judgment of the court of first instance which rejected the lawsuit as to the primary claim of this case is just and there is no error of law by misapprehending the legal principles as to the practical benefit of the lawsuit as asserted in the lawsuit. The arguments are groundless.
2. On the second ground for appeal
According to the reasoning of the judgment below, the court below rejected the plaintiff's conjunctive claim claiming that the plaintiff agreed to obtain transfer from the defendant, and that the defendant agreed to transfer his status as the holder of the license for reclamation of public waters to the plaintiff. In light of the records, the above fact-finding of the court below is justified, and the agreement that the defendant would transfer part of the land he acquired after obtaining a license from the authorities in charge of reclamation of public waters to the plaintiff after completing the construction work is not included in the agreement that the defendant would transfer part of the land he acquired to the plaintiff after completing the construction work. Thus, there is no error of law in the misapprehension of the reasoning in the judgment of the court below. The argument is without merit.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Choi Jae-ho (Presiding Justice)