[1] In a case where the Korea Highway Corporation, which is a project implementer for construction works on an expressway between Pyeongtaek-si and Heung-si, applied for a correction of land area registration in subrogation of landowners incorporated into an expressway pursuant to Article 24(1) and Article 28 subparag. 1 of the former Cadastral Act, but rejected the land price, the case affirming the judgment below holding that the return disposition constitutes an administrative disposition which is subject to appeal litigation

[2] In a case where the Korea Highway Corporation, which is a project implementer for construction works on an expressway between Pyeongtaek-si and Heung-si, applied for land area correction registration on behalf of the land owners included in the expressway construction pursuant to Article 24(1) and Article 28 subparag. 1 of the former Cadastral Act, but returned the land price on the ground that the chemical market omitted a written consent and the authentic copy of a final and conclusive judgment, the case affirming the judgment below which

[1] In a case where the Korea Highway Corporation, which is a project implementer for construction works on an expressway between Pyeongtaek-si and Heung-si, found that the area registered in the official cadastral record of land to be incorporated into the expressway does not coincide with the actual surveying area, and applied for a correction of land area registration on behalf of landowners pursuant to Articles 24(1) and 28 subparag. 1 of the former Cadastral Act (repealed by Act No. 9774, Jun. 9, 2009; hereinafter “former Cadastral Act”), the case affirming the judgment below holding that the disposition of return constitutes an administrative disposition that affected the project operator’s rights or interests under the relevant Acts and subordinate statutes or its refusal, which constitutes an administrative disposition that is subject to an administrative litigation, on the ground that the disposition of return constitutes an exercise of public authority or its refusal that affected the smooth execution of the public project

[2] In a case where the Korea Highway Corporation, which is a project implementer for construction works on an expressway, finds that the area registered in the land’s cadastral record to be incorporated in the construction works on an expressway does not coincide with the area actually measured, and rejected an application for land area correction registration on behalf of landowners pursuant to Articles 24(1) and 28 subparag. 1 of the former Cadastral Act (repealed by Article 2 subparag. 2 of the Addenda of the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009; hereinafter “former Cadastral Act”), the case affirming the judgment below’s rejection of the application due to the lack of the landowner’s written consent and the authentic copy of the final and conclusive judgment, on the ground that Article 28 subparag. 1 of the former Cadastral Act does not require the landowner to submit the original written consent or the final and conclusive judgment equivalent thereto at the time of correcting the registered matters of the public project operator’s subrogation, and that the project operator subrogated the landowner’s request for cadastral correction registration, etc.

[1] Article 2(1)1 of the Administrative Litigation Act, Article 24(1) of the former Cadastral Act (repealed by Article 2(2) of the Addenda of the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009) (see current Article 84(1) of the Act on Land Survey, Waterway Survey and Cadastral Records), Article 28 subparag. 1 (see current Article 87 subparag. 1 of the Act on Land Survey, Waterway Survey and Cadastral Records) / [2] Article 24(1) of the former Cadastral Act (repealed by Article 2 subparag. 2 of the Addenda of the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009) (see current Article 84(1) and (3) (see current Article 84(3) of the Act on Land Survey, Waterway Survey and Cadastral Records), Article 28 subparag. 1 and Article 87 of the Act

Korea Highway Corporation (Law Firm Pwho, Attorneys Mayang-tae, Counsel for defendant-appellant)

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Seoul High Court Decision 2010Nu9046 decided December 28, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The issue of whether a certain act of an administrative agency can be the subject of an appeal cannot be determined abstractly and generally. In specific cases, an administrative disposition is an enforcement of law with regard to specific facts conducted by an administrative agency as the subject of public authority, which directly affects the rights and obligations of the people. The decision shall be made individually taking into account the content and purport of the relevant Acts and subordinate statutes, the subject, content, form and procedure of the act, the actual relation between the act and disadvantage suffered by interested parties, such as the other party, and the principle of administration by the rule of law, the attitude of the administrative agency and interested parties related to the pertinent act, etc. (see, e.g., Supreme Court Decisions 91Nu1714, Jan. 17, 1992; 2008Du167, Nov. 18, 2010).

The lower court determined that, pursuant to Article 28 subparagraph 1 of the former Cadastral Act (amended by Act No. 9774, Jun. 9, 2009; hereinafter the same shall apply), where the Plaintiff becomes a land category of a school site, road, railway site, bank, river, ditch, marsh, water supply site, etc. due to a public project, etc., the project operator may subrogate the landowner’s right to file an application for correction of registered matters in the cadastral record under Article 24 (1) of the same Act by subrogation of the landowner’s right to file an application for correction of registered matters in the cadastral record under Article 24 (1) of the same Act, the Defendant’s return of the application for land area registration to the Defendant (hereinafter the “disposition of this case”) constitutes the exercise of public power or the rejection thereof affecting the rights or interests of the Plaintiff granted for the smooth performance of the public project, which constitutes an administrative disposition subject to appeal litigation.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the subject of appeal litigation.

The Supreme Court precedents asserted as the grounds for final appeal are inappropriate to apply the case in question.

2. Regarding ground of appeal No. 2

Article 28 subparagraph 1 of the former Cadastral Act does not require the landowner to submit a written consent or an authentic copy of a final and conclusive judgment corresponding thereto when correcting the registered matters pursuant to the application for subrogation of a public project operator. The purport that the project operator of a public project is entitled to subrogate the application for cadastral registration to be made by the landowner is to ensure smooth progress of the public project in the event that the landowner fails to perform it at his/her own discretion, and that the request for a written consent or an authentic copy of a final and conclusive judgment capable of setting up against the landowner at the time of correcting the registered matters under Article 24 (3) of the former Cadastral Act is limited to the case where the boundary of the adjoining land is changed due to the correction. In light of the fact that the competent authority has the authority to correct the registered matters in the cadastral record ex officio under Article 24 (2) of the former Cadastral Act even if there is no landowner’s consent, etc., the Defendant cannot reject the application on the ground that the Plaintiff seeking the correction of the registered area in the cadastral record by subrogation of the landowner under Article 28 (1) of the former Cadastral Act.

In the same purport, the judgment of the court below that the defendant's disposition of this case was unlawful is just, and there is no error in the misapprehension of legal principles as to Article 28 subparagraph 1 of the former Cadastral Act.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)