Main Issues

Relationship between the legal restrictions on the sale or lease of property devolving upon the State and the rights of interest;

Summary of Judgment

If a restriction on the sale of property devolving upon the State is applied to the right of association, so if a cancellation of an administrative disposition is sought on the ground of infringement of right of association, the cancellation will be claimed only for the infringed part.

[Reference Provisions]

Articles 11(2), 15, 27, and 29 of the Act on the Disposal of Property Belonging to Jurisdiction

Plaintiff-Appellee

For the purpose of gambling

Defendant-Appellant

The Director General of Seoul Government

Defendant, Intervenor, and Intervenor

Hembling et al.

Judgment of the lower court

Seoul High Court Decision 61Do41 delivered on April 24, 1962

Text

The judgment of the court below is reversed.

Reasons

Since annual interest on the sale or lease of property devolving upon the State under Articles 15 and 29 is the priority of the sale or lease thereof, the provisions governing the limitation on the sale or lease of property devolving upon the State shall also apply to the annual interest. Therefore, in a case where the property devolving upon the State is claimed for the cancellation or modification of an administrative disposition on the property devolving upon the State due to an infringement of annual interest rights, if it is possible to divide the property devolving upon the State, the claim for cancellation or modification is made only for the part infringing upon the rights. As such, Articles 11(2) and 27 of the Act provide that the land for the construction of private housing may be sold or leased within 200 square meters for only one person, and if the site exceeds 200 square meters, the excess portion shall not be sold or leased collectively, and therefore, the court below erred by misapprehending the legal principles on the property devolving upon the State under Article 20 of the Civil Procedure Act and the part concerning the building site which belongs to the State under the premise that the judgment below cannot be accepted as to the part exceeding 260 square.