Whether a public official in charge of the commission of preservation registration has a duty of care to verify whether there is a reason for nationalization as prescribed by a statute for the reason that the real estate was owned by the State under the statute (affirmative), and in a case where the act of preservation registration becomes illegal because the reason for nationalization is not recognized, the requirements for the recognition of negligence by the public official in charge and the burden of proof

Article 2(1) of the State Compensation Act, Article 750 of the Civil Act, Article 288 of the Civil Procedure Act

Plaintiff (Attorney Park Jin-jin, Counsel for the plaintiff-appellant)

Korea

Supreme Court Decision 2010Da28604 Decided May 17, 2012

Seoul High Court Decision 2012Na41306 decided October 18, 2012

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. As to the ground of appeal on illegality

According to the reasoning of the judgment below and the records, inasmuch as Nonparty 1, the Plaintiff’s fleet, is presumed to have become final and conclusive after examining the land of this case, the presumption power of the preservation registration of this case, which was completed in the name of the Defendant regarding the land of this case, is broken, and the Defendant fails to prove that the preservation registration of this case conforms to the substantive legal relationship. As such, the completion of the preservation registration of this case as to the land of this case, which is not owned by the Defendant, has completed the preservation registration under the name

Therefore, the judgment of the court below that the act of completing the preservation registration of this case was unlawful is just, and there is no error in the grounds of appeal.

2. As to the ground of appeal on intention or negligence

A. A public official in charge of entrusting preservation registration on the ground that a real estate was owned by the State in accordance with a statute has a duty of care to verify whether there exists any cause of nationalization as prescribed by a statute with respect to real estate subject to registration. However, even if the cause of nationalization, which serves as the basis of preservation registration, is not recognized as a result, and thus the act of registration on the real estate was unlawful, that alone cannot be deemed as a negligence by the public official in charge, and if an average public official in charge of the same duty was paid with ordinary attention that there is no cause of nationalization as prescribed by a statute, the negligence may be recognized when the preservation registration is completed without excessive attention, and the burden of proof is the Plaintiff seeking compensation for damages

B. According to the reasoning of the judgment below, the court below found that the defendant violated the duty of care to clarify the existence of the owner before the preservation registration of this case, on the ground that (i) Nonparty 1, the fleet of the plaintiff, stated the land in the forest survey report of this case as the owner of this case, and the preservation registration of this case was completed on the ground that the land in this case was not indicated in the forest survey report of this case; (ii) even if the land in this case was nationalized into real estate without real property under the Civil Act, Nonparty 1 was indicated as the owner of the forest survey report of this case; and (iii) the defendant should have confirmed whether he is the real owner of this case at the time of the preservation registration of this case; (iv) whether he is the heir or successor; and (v) whether he is the heir or successor if he was dead. Furthermore, the court below determined that the defendant's assertion that there was no reason for the completion of the preservation registration of this case on the ground of reversion of rights, and that there was no legal basis for the defendant's amendment of the Forestry Act.

C. However, the lower court’s determination is difficult to accept in light of the aforementioned legal principles and the following circumstances.

(1) The legal principles presumed to have been established only through Supreme Court en banc Decision 84Meu1773 Decided June 10, 1986, which presumed that the person entered in the Land Survey Book as the owner was the owner of the land and that the circumstance became final and conclusive. In determining the negligence with respect to the act of preservation registration of this case done prior to the above en banc Decision, the above legal principles established thereafter cannot be applied as they are. In particular, there was a Supreme Court decision that it cannot be known that even if it was entered in the Land Survey Book as the owner at the time of the preservation registration of this case, even if it was entered in the Land Survey Book as the owner at the time of the preservation registration of this case (Supreme Court Decision 72Da499 Decided May 31, 1972). Accordingly, the negligence of the public official in charge of the preservation registration of this case cannot be determined on the premise that the Plaintiff’s preference stated in the Forest Survey

(2) In addition, while the old cadastral book concerning the land of this case was restored without any legal basis before the amendment of the Cadastral Act on December 31, 1975, the legal principle denying the presumption of rights to the owner's entry in the original book arbitrarily restored shall be deemed to have been established after June 26, 1974, at least since the date of preservation registration, the public official's negligence in charge of the preservation registration of this case cannot be determined on the premise of such legal principle. In other words, the proviso of Article 10 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8110, May 7, 1976) provides that "the matters concerning the owner cannot be restored and registered without any legal basis," Article 6 of the Addenda to the same Enforcement Decree provides that "the owner shall be arbitrarily recorded in the original cadastral book as at the time of the enforcement of this Decree, and that the owner shall be subject to the presumption of rights to the restoration from the original registry (including the entry of the owner's arbitrarily as reference materials)."

(3) In addition, although the land of this case is not entered in the forest land ledger, it is reasonable to view that the forest land, which is recorded as the property devolving on the forest land ledger, is owned by Japanese people. On the contrary, it cannot be readily concluded that the forest land not entered in the forest land ledger, which is not in the forest land ledger, is not the ownership of Japanese people (see Supreme Court Decision 96Da32812, Nov. 15, 1996). Therefore, just because the land of this case is not entered in the forest land ledger, it is insufficient to readily conclude that the public official in charge of the preservation registration of this case could have known that the land of this case may not be the Japanese people, and no evidence to recognize this may be found even after examining the record.

D. Therefore, the circumstances cited by the lower court as the ground for recognizing negligence and the evidence presented by the lower court alone alone are insufficient to prove that the ground for nationalization of the instant land does not exist if an average public official in charge of the same business had paid due attention to the fact that there was no ground for nationalization. Nevertheless, the lower court determined that the public official in charge of the preservation registration of this case was negligent for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on negligence in the State’s liability for damages, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Chang-suk (Presiding Justice)