[1] Whether an administrative property naturally becomes a miscellaneous property subject to acquisition by prescription solely on the ground that the administrative property is not provided for its original purpose (negative)

[2] Whether a legitimate declaration of intent to abolish public use can be viewed as a legitimate declaration of intention solely on the ground that an administrative re-agency erroneously exchanged administrative property with another property (negative)

[1] Even if administrative property has lost its function and is not provided for its original purpose, it does not naturally become a miscellaneous property subject to acquisition by prescription, unless it is abolished by the relevant laws and regulations.

[2] The expression of intent for the abolition of public use can be made impliedly but the mere fact that the administrative property is not provided for its original purpose does not necessarily mean that an implied declaration of intention for the abolition of public use exists. In addition, the expression of intention for the abolition of public use should be legitimate. Since the administrative property cannot be the object of private transaction in the state where it is not discontinued for public use, it cannot be viewed that there is a legitimate declaration of intention for the abolition of public use merely because the administrative property is exchanged with other property by mistake.

[1] Articles 4, 5(2), and 30 of the State Property Act; Article 245(1) of the Civil Act / [2] Articles 5(2) and 30 of the State Property Act; Article 245(1) of the Civil Act

[1] [2] Supreme Court Decision 93Da42658 delivered on Apr. 28, 1995 (Gong1995Sang, 1955) Supreme Court Decision 94Da42877 delivered on Nov. 14, 1995 (Gong1996Sang, 2) Supreme Court Decision 96Da10737 delivered on Aug. 22, 1997 (Gong1997Ha, 2783) / [1] Supreme Court Decision 92Nu18528 delivered on Apr. 13, 1993 (Gong193Sang, 1410) / [2] Supreme Court Decision 95Da52383 delivered on May 28, 199 (Gong196Ha, 1982), Supreme Court Decision 90Da31979 delivered on Apr. 13, 197 (Gong1997Da197989 decided Apr. 197, 1997)

Plaintiff

Korea

Changwon District Court Decision 97Na7466 delivered on July 2, 1998

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

1. The lower court rejected the Defendant’s assertion that the Plaintiff occupied and sold the instant land to Nonparty 2, Nonparty 3 on June 7, 1969, on the ground that: (a) the Plaintiff had occupied and sold the instant land to Nonparty 1 on the ground that: (b) the Plaintiff had occupied and sold the instant land to Nonparty 2, Nonparty 3 on June 7, 1969 on the ground that: (c) the Plaintiff had occupied and sold the instant land to the Plaintiff for the purpose of 97 years after the acquisition of the prescriptive prescription on the ground that: (d) the Plaintiff had occupied and sold the instant land to Nonparty 2, and Nonparty 3 had occupied and sold the instant land to the Plaintiff on June 6, 197 on the ground that: (e) the Plaintiff had occupied and sold the instant land to the other place; and (e) Nonparty 2, and (e) the Plaintiff had occupied and sold the instant land to the Plaintiff on the ground that the prescriptive prescription had not been completed on the ground that: (e) the Plaintiff had occupied and sold the instant land to the Plaintiff on June 97, 97.

2. However, even if the administrative property has lost its function and is not provided for its original purpose, it does not naturally become a miscellaneous property subject to acquisition by prescription unless it is abolished by the relevant laws and regulations. The expression of intention of abolition for public use is possible by implied means, but the administrative property is not provided for its original purpose, and the expression of intention of abolition for public use cannot be deemed legitimate. In addition, the declaration of intention of abolition for public use should be legitimate. Since the administrative property cannot be a subject of private transaction even if it is not discontinued for public use, it cannot be deemed that there is a legitimate declaration of intention of abolition for public use solely because the administrative property is exchanged with other property by mistake (see, e.g., Supreme Court Decisions 96Da10737, Aug. 22, 1997; 95Da52383, May 28, 1996).

In this case, first, even if the land of this case was a ditch, which is an original state-owned administrative property, lost its function as a ditch, such circumstance alone cannot be deemed to have become a miscellaneous property subject to prescriptive acquisition, or there was an implied declaration of intention to abolish the land for public use.

Next, the court below acknowledged the fact that private-gun exchanged the land of this case with the land of this case owned by non-party 1 and judged that there was an implied public disuse on the ground of such circumstance. However, as evidence that private-gun exchanged the land of this case owned by non-party 1 with the land of this case owned by the non-party 1, the non-party 1 was only a witness at the court of first instance, even according to the testimony, but the non-party 1 did not specify the land subject to exchange, and the non-party 1 acquired the land from private-Gun, including the land of this case by exchange, from non-party 2 and the non-party 3, as a whole, sold the land of this case to the non-party 3 and prepared to sell it again to the plaintiff, it is difficult to accept the judgment of the court below as to the non-party 1's conclusion of the contract of this case on the land of this case on the ground that the non-party 1 entered the land of this case into the land of this case into the land of this case as state-owned facilities.

Nevertheless, the lower court determined that the instant land, which was originally administrative property solely for the foregoing reason, is subject to prescriptive acquisition due to implied public abolition. In so doing, the lower court erred by misapprehending the legal doctrine on the disuse of administrative property, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Accordingly, the allegation in the grounds of appeal assigning this error

3. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)