(영문) 대구고법 1973. 11. 29. 선고 72나879 제2민사부판결 : 상고[손해배상청구사건][고집1973민(2), 403]
A. Whether or not the State is liable for damages in the event of farmland distribution without taking over the Minister of Finance and Economy’s administrative property
(b) Initial date of extinctive prescription under the Budget and Accounts Act.
(a) Even though the Minister of Finance and Economy did not transfer the state-owned administrative property to the Minister of Agriculture and Forestry, if the farmland distribution procedure has been carried out, there is an obvious fault in the execution of the distribution affairs by the pertinent authority, and the country is liable to compensate for the damages caused by the failure of the Plaintiff, etc. who purchased the real property to obtain the ownership of the property, in trust
B. It is reasonable to view that the starting point of the extinctive prescription in the Budget and Accounts Act of the right to claim compensation for damages against the state of the purchaser of illegally distributed farmland is the time when the registration of the farmland is deemed effective and purchased.
Article 750 of the Civil Code, Article 71 of the Budget and Accounts Act
Plaintiff 1 and five others
Korea
Busan District Court (72 Gohap873)
The part against plaintiffs 1, 2, etc. in the original judgment shall be revoked.
The defendant pays to the plaintiff 1 520,000 won with an annual interest rate of 5% from July 5, 1972 to the full payment of 1,540,000 won with respect to each of the money and each of the money.
All remaining claims of plaintiffs 1 and 2 and appeals of plaintiffs 3, 4, 5, and 6 are dismissed.
Among the costs of lawsuit, the part that was born between the plaintiff 1 and 2 and the defendant through the first and second trials shall be divided into two parts, and the remainder shall be borne by the plaintiff, etc., and the remainder shall be borne by the defendant, respectively, and the part that was born by the appeal of the plaintiff 3, 4, 5, and 6 shall be borne by the plaintiff, etc.
1. Revocation of the original judgment;
2. The Defendant paid to Plaintiff 1 money of KRW 858,00, KRW 1,458,00, KRW 2,310,000 to Plaintiff 4, and KRW 2,409,00 to Plaintiff 5, KRW 2,409,00 to Plaintiff 2,541,00, KRW 2,310,00 to Plaintiff 6, and KRW 2,310,00 to Plaintiff 6, respectively, and KRW 5% per annum from the following day of the delivery of the duplicate so as to the date of completion.
3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.
4. Provisional execution may be effected only under the above paragraph (2).
As evidence No. 1-18, 2, and 5 of the evidence No. 1-18, No. 2, and 5 of the above evidence No. 1-2, and the non-party 1, 2, and 5 of the above evidence No. 1, the court below held that the non-party 1, 2, and the non-party 4 of the judgment of the court below and the non-party 4 can be established by testimony of the non-party 1 and the non-party 1-7 of the evidence No. 4, each of which was recorded in the separate list No. 1-6 of the above evidence No. 1 and the whole purport of the party's pleading, were purchased to use each of the real estate which was originally discussed in the separate list No. 1, 1940 and managed the real estate as state-owned property as it was in violation of the law of farmland No. 1, 36 of the court below's decision that the ownership transfer registration was not required for public use or public use.
Therefore, since there is an obvious fault in the execution of distribution affairs of farmland, the defendant cannot be exempted from liability for an illegal act. As such, the defendant takes an invalid distribution procedure as above by negligence, and the plaintiff who purchased the real estate did not acquire its ownership. Accordingly, the defendant's liability for damages is asserted to have been extinguished by the completion of the five-year statute of limitations as stipulated in Article 71 of the Budget and Accounts Act from the date of execution of distribution affairs or redemption to the 5-year short-term statute of limitations as stipulated in Article 76 of the said Act. Since the defendant's claim was not exercised for the purpose of payment of money to the 5-year long-term statute of limitations as against the plaintiff 16, the 5-year long-term statute of limitations as stated in the 196-year statute of limitations, the remaining real estate was purchased by the plaintiff 16-6, as alleged in the defendant 16-6 list, and thus, it cannot be deemed that the remaining real estate had been purchased by the plaintiff 16-6, as stated in the 19-6-6-year statute of limitations.
Furthermore, as to the number of damages suffered by Plaintiffs 1 and 2, etc.:
In this case, the amount of damages of the plaintiff et al. is equivalent to each purchase price paid by the plaintiff et al. (it is not possible to conclude that there was negligence in purchasing the above). In full view of the above Gap Nos. 4-1 and 4, Gap No. 10-2, etc. without dispute over the establishment, and the whole purport of the plaintiff's pleading with the non-party No. 2's testimony, the amount paid by the plaintiff et al. as purchase price shall be 520,000 won per the reasonable price at the time, and the amount paid by the plaintiff et al. as purchase price shall be 20,000 won per the reasonable price at the time, and there is no other counter-proof.
Accordingly, as recognized earlier, the defendant is obligated to pay the plaintiff 1 with 520,00 won and 1,540,000 won and 1,540,000 won and 5% interest rate per annum, which is a civil legal interest rate, from July 5, 1972 to the full payment system on the record that the plaintiff et al. is the next day of service that the plaintiff et al. voluntarily sought. The plaintiff et al.'s claims for this case are justified within this limit, and the remaining claims for the plaintiff 1 and 2 are not dismissed as they are without merit. Accordingly, the part on the plaintiff 1 and 2 in the original judgment is unfair with different opinions, and the remaining part on the plaintiff et al. is just as the conclusion, and the appeal shall be dismissed pursuant to Article 384 of the Civil Procedure Act and Article 9, 9, 92, and 93 of the Provisional Execution Act shall not be applied as to the provisional execution and the provisional execution order shall be dismissed pursuant to Articles 384 of the same Act.
[Attachment List omitted]
Judges Choi Hon-ro (Presiding Judge) and Cho Jong-hee