[1] Requirements for the surface of a river to which the aforesaid provisions shall apply mutatis mutandis to the public waters under the former Public Waters Reclamation Act

[2] In the case of reclamation of state-owned undeveloped land pursuant to the former Land Clearing Promotion Act, whether the ownership of the land is acquired by completing construction with the permission of reclamation and obtaining the authorization of completion (negative)

[3] The meaning of the concept of actual ownership or actual ownership

[4] The case holding that in case where a private person has completed the reclamation of state-owned undeveloped land with the permission of reclamation under the former Land Reclamation Promotion Act and obtained the authorization of completion for purchase from the State after exercising the right to purchase the land, but the purchase contract was not concluded and the compensation is not repaid, the private person is not the actual or actual owner of the land, and the surface of the river to which the provisions apply mutatis mutandis is the public waters under the former Public Waters Reclamation Act on the ground that the state is the owner of the land

[1] Article 2 subparagraph 1 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) provides that "the term "public waters" refers to rivers, sea, lakes, marshes, and other water or water surface used for the public use, which belong to the ownership of the State". In order for the water surface of a river to be applied mutatis mutandis to the public waters stipulated in Article 2 of the same Act, the land under the water surface, namely, the land under the water surface, and the water surface of a river whose land under the water surface belongs to the private person, shall not fall under the public waters owned by the State under Article 2 of the same Act.

[2] Under the former Farmland Development Promotion Act (amended by Act No. 1532, Dec. 16, 1963; Act No. 1872, Jan. 16, 1967; Act No. 2, Jan. 16, 1967; Act No. 1872, Jan. 16, 1967; Act No. 2, etc. of the Farmland Development Promotion Act), a person who completed a construction project with the permission to reclaim state-owned land and obtained the authorization for completion of the construction project shall acquire the ownership

[3] Generally, the concept of ownership or actual ownership is established as a legal requirement which causes the acquisition of ownership, such as sale and purchase, and the actual requirements for the acquisition of ownership are all satisfied, but it refers to the case where one does not have the registration of his name, which is the formal requirements

[4] The case holding that in case where a private person has completed the reclamation of a state-owned undeveloped land with a permit for the reclamation under the former Land Reclamation Promotion Act and obtained the authorization of completion, and where a sales contract was not concluded and a price is not repaid, the part of the land is spreading on the flowing water of a river to which the provisions apply mutatis mutandis, and the private person is not the actual or actual owner of the land, and the surface of a river to which the provisions apply mutatis mutandis is the public waters under the former Public Waters Reclamation Act.

[1] Article 2 subparagraph 1 of the former Public Waters Reclamation Act (amended by Act No. 537 of Apr. 10, 197) / [2] Articles 17, 18, 19, and 29 (2) of the former Public Waters Reclamation Act (amended by Act No. 1532 of Dec. 16, 1963), Article 186 of the former Public Waters Reclamation Act (amended by Act No. 1532 of Dec. 16, 196), Article 186 of the Civil Act / [3] Article 186 of the Civil Act / [4] Article 186 of the former Public Waters Reclamation Act (amended by Act No. 1532 of Dec. 16, 1963; Article 2 of the Addenda of the Farmland Reclamation Act (amended by Act No. 1532 of Jan. 16, 1967); Article 197 (2) of the former Public Waters Reclamation Act (amended by Act No. 15137 of Article 197 of the current Public Waters Reclamation Act)

[2] Supreme Court Decision 93Da20283 delivered on September 10, 1993 (Gong1993Ha, 2733), Supreme Court Decision 97Da31649 delivered on October 24, 1997 (Gong1997Ha, 3613), Supreme Court Decision 98Da17329 delivered on December 8, 1998 (Gong199Sang, 94) / [3] Supreme Court Decision 92Nu16843 delivered on September 28, 1993 (Gong193Ha, 2997)

Plaintiff (Attorney Lee Young-hoon et al., Counsel for the plaintiff-appellant)

Gangnam-si

Seoul High Court Decision 96Na39983 delivered on October 14, 1998

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

1. The judgment of the court below

A. Facts acknowledged by the court below

(1) After completing the reclamation with the permission of reclamation granted from the Governor of Gangwon-do pursuant to the former Farmland Development Promotion Act (amended by Act No. 1532, Dec. 16, 1963; Act No. 2, Jan. 16, 1967; Act No. 1872, Jan. 16, 1967; Act No. 2, Feb. 22, 1965; after obtaining the authorization of completion of the reclamation on February 12, 1965, the Plaintiff submitted an application for the purchase of the above land to the Gangwon-do Master-gun, Gangwon-do under the provisions of Article 17 of the above Act and Article 27 of the Enforcement Decree of the same Act.

(2) Around 1982, the bank collapses, which is a river with mutatis mutandis application for the land reclamation of this case, installed in the south east of the land, and the land of this case passed through the part of the land of this case and flows into the East Sea. Around that time, the remainder of the land of this case, excluding the part of the land of this case, among the land of this case, the land of this case for the land reclamation of this case, was cadastral restoration, and the ownership transfer registration was completed on April 4, 1983, and the ownership transfer registration was completed on August 23, 1983, but the land of this case was not cadastral restoration on the ground that the river flow.

(3) In April 1986, when a private spring site where the land of this case was closed, including a part of the land of this case, due to the extension of a breakwater in the private spring and the construction of the river mouth in the estuary located in April 1986, the land of this case was completed on January 12, 1987 after obtaining a license to reclaim public waters with respect to the above waste site of 43,760 square meters on September 19 of the same year. The reclaimed part was restored to the above ( Address 1 omitted) 42,850 square meters and 910 square meters in the ( Address 2 omitted) land, and the registration of preservation of ownership was completed in the name of Gwangju-gun on November 24, 1987. Each of the land of this case was divided into the above land of this case into the land of this case, and the registration of ownership transfer was made in the name of another person with respect to the land of this case.

(4) On December 13, 1988, the Plaintiff continued to cultivate the remaining parts of the land for which the instant reclamation application was filed in flood, and purchased 12,078 square meters (3,653 square meters), such as the above (3.653 square meters), from the Gangwon-do Governor on December 13, 198, the local number of the said land for which the said reclamation application was filed, and completed the registration of ownership transfer in the Plaintiff’s name on February 28, 1989. However, the Plaintiff did not comply with the request for purchase on the ground that the land in this case was reclaimed in the state where the land was not reclaimed by the Plaintiff after obtaining a license for reclamation of public waters.

(5) On January 1, 1995, pursuant to the Gyeonggi-do Act on the Establishment of Facilities in the Urban and Residential Complex (Act No. 4774), 33 Kanyang-si, Gyeonggi-do, etc., and its jurisdiction was abolished, and its jurisdiction was incorporated into the defendant Gangnam-si.

B. The judgment of the court below

Article 2 of the Public Waters Reclamation Act provides that "public waters shall belong to the State's ownership, such as rivers, seas, lakes and marshes or water surface used for public use." Since public waters belong to "State's ownership" under Article 2 of the above Act, it refers to not only the surface of public waters but also to the ground of such public waters. It refers to the actual ownership of the State without any restrictions on the use, profit, disposition, etc. by the State. Since the State, which obtained authorization of completion pursuant to Article 17 of the former Land Reclamation Promotion Act and Article 27 of the Enforcement Decree of the above Act, expressed its consent to an application for purchase of the part of this case's land, and the State bears the duty to implement the procedure for ownership transfer registration based on a sales contract formed by its declaration of intention. On the other hand, since the part of the State's reclamation license belongs to the State's ownership registration of the above land, it shall not be applied mutatis mutandis to the order of the State's sale of the above land to the plaintiff, which is the owner of the above land.

2. Judgment of party members

However, it is difficult to accept the judgment of the court below for the following reasons.

A. Article 2 subparagraph 1 of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) provides that "the term "public waters" means rivers, sea, lakes, marshes, and other water or water surface used for the public use, which belong to the ownership of the State. In order for the water surface of a river to be applied mutatis mutandis to the public waters prescribed in Article 2 of the same Act, the land below the State, namely the land below the water surface, the water surface of a river below the water surface shall be owned by the State, and if the water surface of a river below the water surface shall not fall under the public waters owned by the State under Article 2 of the same Act.

B. However, the former Land Development Promotion Act does not directly acquire the ownership of the State-owned land after obtaining permission for reclamation and obtaining authorization for completion of construction with regard to the State-owned land (see, e.g., Supreme Court Decisions 97Da31649, Oct. 24, 1997; 98Da17329, Dec. 8, 198). Meanwhile, the term “actual ownership or substantial ownership” refers to cases where a legal requirement which causes the acquisition of ownership, such as sale, is established, and the actual requirements for the acquisition of ownership are not satisfied, but the ownership are not registered in its own name, which is the formal requirements (see, e.g., Supreme Court Decision 92Nu16843, Sept. 28, 1993).

According to the facts of the court below's finding as to this case, the plaintiff exercised the right to purchase the land of this case after obtaining permission for reclamation and obtaining authorization for completion after completing reclamation under the former Land Reclamation Promotion Act, but the sales contract was not concluded and the payment was not made. Thus, the plaintiff's status as the plaintiff in this case can not be deemed as the actual owner regardless of the actual owner of the land of this case. Even though the state bears the duty of the plaintiff to express his/her consent for the above request for purchase, the state as the owner can dispose of the land of this case without any legal restriction against the third party, regardless of the fact that the state bears the duty to compensate for the non-performance.

C. Thus, as the plaintiff's private land owned by the plaintiff, the state can not dispose of the land of this case at its own discretion, and therefore, the land of this case does not correspond to the public waters belonging to "the ownership of the state" under the Public Waters Reclamation Act. Accordingly, the court below's decision that the public waters reclamation license and authorization of the completion for the land of this case granted by the order-based state for the public waters reclamation license and the public waters reclamation license are not the public waters under Article 2 of the Public Waters Reclamation Act, and its defect is so serious and obvious that it is null and void, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Son Ji-yol (Presiding Justice)