[소유권이전등기][공1999.9.1.(89),1734]
The case holding that the real estate has become subject to prescriptive acquisition by recognizing an implied public abolition of the administrative property.
In a case where the principal of a school sells the real estate to an individual after the head of a school disuses the official residence outside of the school and after the resolution of the board of directors of a private-friendly council, the case held that the real estate is subject to prescriptive acquisition on the ground that the real estate was permanently discontinued for public use at least, and its use was not valid by the State's instruction, even if the principal discontinued the real estate as ordered by the State, and immediately sold it without devolving on the financial department, and the above real estate was sold to an individual for a long time, and the State did not raise any problem in the sale procedure, and the real estate was not used at all for public use such as the official residence
Article 245 of the Civil Act, Articles 5(2) and 30 of the State Property Act
Supreme Court Decision 96Da43508 delivered on May 28, 1996 (Gong1996Ha, 1982), Supreme Court Decision 96Da10737 delivered on March 14, 1997 (Gong1997Sang, 1091), Supreme Court Decision 98Da49548 delivered on January 15, 199 (Gong1999Sang, 299)
Plaintiff
Korea
Changwon District Court Decision 98Na8213 delivered on February 5, 1999
The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion on the prescriptive acquisition of the instant real estate on the ground that it cannot be viewed that there was an implied declaration of intention to permanently abolish the real estate solely on the ground that the instant real estate was used for personal use, not for the original purpose such as official residence, etc., since it sold the instant real estate to Nonparty 1, which was used as official residence and its site for the above school on April 7, 1956.
2. However, it is difficult to accept such a disposition by the lower court.
According to the records, on November 1946, the real estate of this case was purchased to use as an official residence by the above school personnel as the contribution of the above school association and registered in the name of the above school, and is located in the Jin-si, other than the above school premises. On March 3, 1954, the defendant instructed the above principal of the school to abolish the system of official residence except for mission units, business units, military units, and official residences within the public agencies, so that it can belong to the financial department, and notified the financial department of the abolished government office that it was a policy of public sale by competitive bidding. The above government office, which was the head of the above school, should not belong to the financial department of this case on April 7, 1956, and the real estate of this case, which was located outside the above school, was sold to an individual through a resolution of the above school association, and it cannot be seen that the real estate of this case was sold to the above government office without being sold to the above public office, and it cannot be viewed that it was in fact owned by the above public association.
3. Nevertheless, the court below rejected the plaintiff's claim for the acquisition of prescription on the ground that there is no evidence to deem that the real estate in this case was abolished for public use, and the court below erred by misapprehending the legal principles on the abolition of the public use of administrative property, which affected the remaining judgment. The allegation pointing this out has merit.
4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)