[토지소유권보존등기말소등][공1998.1.1.(49),52]
In the case of general reclamation under the former Land Development Promotion Act, whether a land developer is deemed to establish a sales contract for the relevant land or a land developer acquires the ownership of the relevant land by depositing the price for the land to a landowner (negative)
According to the former Land Development Promotion Act, when a landowner refuses to receive the price of land in the case of special reclamation or it is impossible to directly pay the price of land because the landowner or his/her residence is unclear, a person who has obtained permission for land reclamation can deposit the price, and when a person who has obtained permission for land reclamation paid the price of land or deposited the price for the land for the first year, he/she shall be deemed to have acquired the ownership when a contract for the purchase of the land is concluded and an authorization for completion is granted. However, in the case of general reclamation, there is no provision on legal fiction of the establishment of a contract for direct purchase between the landowner and the landowner, as well as the provision on legal basis for direct deposit of the price of land between the landowner and the landowner. Thus, even if a land developer deposits the price of real estate with the owner of the real estate as a deposit, the sale and purchase of real estate between the landowner and the owner of the real estate cannot be deemed to have acquired the ownership of real estate as a matter of course. Moreover, it shall not be deemed that the State acquired the ownership of real estate in advance payment by the Government.
Article 187 of the Civil Act; Article 25 of the former Farmland Development Promotion Act (repealed by Act No. 1028 of Feb. 22, 1962; Act No. 1872 of Jan. 16, 1967; Act No. 2 of Jan. 16, 1967); Article 34 of the former Enforcement Decree of the Farmland Development Promotion Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Plaintiff (Attorney Jeong-soo et al., Counsel for the plaintiff-appellant)
Defendant 1 and nine others
Seoul High Court Decision 96Na19811 delivered on January 31, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
Examining the facts established by the court below based on the reasoning of the judgment below, the non-party Governor of Gangwon-do was promulgated on February 28, 1964 by the Land Clearing Promotion Act (Act No. 1028, Feb. 22, 1962; Act No. 1392, Aug. 14, 1963; Act No. 1532, Dec. 16, 1967; Act No. 1872, Jan. 16, 1967; hereinafter referred to as the "Act"), which was not registered pursuant to Article 5 of the Addenda to the Farmland Creation Promotion Act (amended by Act No. 1872, Jan. 16, 1967; hereinafter referred to as the "Act"), the non-party Governor of Gangwon-do determined the land to be reclaimed on March 4, 196, and the land to be reclaimed on the land of this case, including the real estate of this case, and the land to be reclaimed on the land of this case, the plaintiff.
However, in the case of special reclamation, when a landowner refuses to receive the price of the land or is unable to pay it directly because the landowner or his residence is unclear, a person permitted to do such reclamation shall be permitted to deposit the price (Article 25(2) of the Act). Where a person permitted to do reclamation has paid or deposited the price of the land for the first year, he shall be deemed to have entered into a sales contract for the land and he shall acquire the ownership (Article 34(1) and (2) of the Enforcement Decree of the Land Clearing Promotion Act). However, in the case of general reclamation (Article 14(1) of the Land Clearing Promotion Act, in addition to the provisions under which the Government may purchase private land (Article 14(1) of the Act), there is no provision on legal fiction of the establishment of a direct sales contract between the landowner and the landowner, and there is no provision on legal basis to deposit the price of each real estate directly with the landowner. Thus, even if the Plaintiff deposited the price of each real estate with the owner of each of the real estate of this case, this cannot be deemed to have been acquired the ownership of each of this case and the Plaintiff cannot be deemed to have acquired the ownership.
In addition, as long as the lower court’s determination that the State acquired the ownership of each real estate of this case with the deposit of the Plaintiff and that the Plaintiff cannot be deemed to have purchased each real estate of this case from the State is justifiable, the ground of appeal that the owner of each real estate of this case cannot be deemed to have paid the price in full due to deposit of money much less than the government purchase price, does not need to further be determined.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Jong-chul (Presiding Justice)