[토지소유권보존등기말소청구사건][고집1972민(1),143]
Ownership of reclaimed land in cases where the Minister of Construction and Transportation grants a reclamation license and completion inspection on the public waters already reclaimed;
Land illegally reclaimed without a license is still public waters under the law. Accordingly, if the State takes nationalization measures under Article 26(3) of the Public Waters Reclamation Act and Article 31 of the Enforcement Decree of the same Act, and if it fails to take such measures, the reclamation license and completion inspection for the above reclaimed land shall be acquired from the Minister of Construction and Transportation at the time of the original acquisition of the ownership of the reclaimed land.
Articles 4, 14, and 26 of the Public Waters Reclamation Act, Article 31 of the Enforcement Decree of the Public Waters Reclamation Act
Supreme Court Decision 72Da841 delivered on August 22, 1972
Korea
Busan City
Busan District Court (71 Gohap340)
The part of the judgment of the court below relating to the principal lawsuit shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
On April 25, 1969, the defendant performed the procedure for the cancellation registration of the registration of ownership preservation as of April 25, 1969, the Busan District Court No. 14694, with respect to the real estate stated in the
Litigation costs shall be borne by the defendant.
As set forth in the text.
The main real estate in the attached list was originally public waters, and there is no dispute between the parties as to the fact that the defendant obtained from the Minister of Construction and Transportation on July 12, 1963 the reclamation license for the public waters of 5 Ga, Seo-dong, Busan, Seo-dong, Busan, about 1 and 29 Ga, 28,380, including the above real estate, and obtained the approval of the Minister of Construction and Transportation on February 15, 1969, and that the registration of preservation of ownership was made under the name of the defendant on April 25, 1969.
The plaintiff's litigation performer is naturally owned by the plaintiff under Article 26 of the Public Waters Reclamation Act, and Article 252 of the Civil Act, since the plaintiff's real estate had already been buried illegally by the defendant who is not the defendant before the reclamation license was granted to the defendant. But for the convenience of selling the real estate to the related party, the plaintiff's reclamation license was not granted to the defendant, and even if the real estate was granted a reclamation license, the part is invalid automatically and the defendant did not obtain the above approval, and the registration of ownership preservation was made as if the defendant buried the above real estate without the above approval of the Minister of Construction and Transportation, so it was argued that there was no dispute about the establishment of the above 2,35,6, Gap's No. 7, and No. 13, and the testimony and verification of the court below's 7,000,000 after the sale of the real estate to the defendant.
I think, even if a part of a public water surface is actually reclaimed, if the state abolishs the public water as a public water surface and does not take national measures, the land in the part of the reclamation is still in possession of the nature as a public water surface under the law. Therefore, in this case, the Minister of Construction and Transportation's administrative disposition that granted the defendant a reclamation license of 28,380 square meters including dispute real estate is valid, and the part of the dispute real estate is not invalid, and the land illegally reclaimed without a license is still a public water surface and the facilities, soil, etc. in the public water surface are not free from the public water surface and the ownership can not be acquired by the state through nationalization under Article 26 (3) of the Public Waters Reclamation Act and Article 31 of the Enforcement Decree of the same Act, and if the plaintiff is the person who did not take such measures, it can not be recognized that the defendant's ownership should be legally acquired from the plaintiff's reclamation license and the remaining part of the reclamation license should not be determined by the defendant's ownership.
As above, the judgment of the court below which entered into a different conclusion is unfair, and thus, it is so decided as per Disposition by Articles 96 and 89 of the Civil Procedure Act as to the burden of litigation costs after cancelling it pursuant to Article 386 of the same Act.
[Attachment List omitted]
Judges Lee Jung-gu (Presiding Judge)