(영문) 서울고등법원 2013.5.10.선고 2012재나129 판결

A. Defendant (Defendant) shall pay to Plaintiff (Plaintiff) B 959,262,014 won, Plaintiff (Plaintiffs) C, Plaintiff (Plaintiffs) D, and Plaintiff (Plaintiffs) E 700,413,534 won, respectively, and 175,103,383 won, and 20% interest per annum for each of the above amounts from January 1, 1999 to May 10, 2013, and from the next day to the date of full payment.

B. The plaintiff (the re-appellant)'s primary claim against the defendant (the plaintiff) and the intervenor for the plaintiff (the plaintiff) as to each land listed in the attached Table 2 and 3's real estate list, the remaining conjunctive claim related to each land listed in the attached Table 2 and 3's real estate list against the defendant (the plaintiff for the re-adjudication) and the remaining claims related to each land listed in

3. Of the total litigation costs before and after the retrial, the part incurred between the plaintiff (the plaintiff in the retrial) and the defendant (the defendant in the retrial) shall be borne by the defendant, and the part incurred between the plaintiff (the plaintiff in the retrial) and the defendant in the lawsuit shall be borne by the plaintiff in the retrial

4. The above paragraph 2 (a) may be provisionally executed.

Purport of appeal and review of claim

1. Purport of claim

A. In the first place, the defendant (the defendant; hereinafter referred to as the "defendant") shall execute the registration procedure for transfer of ownership due to the completion of repayment for the share of 92/425 to the plaintiff (the plaintiff hereinafter referred to as the "the plaintiff hereinafter referred to as the "the plaintiff ") with respect to each of the lands listed in the attached real estate list Nos. 2. The defendant shall pay to the plaintiff 363,621,66, 905, 416, and each of the above lands listed in the attached real estate list No. 3 to the plaintiff 126/425, with respect to the share of 92/425, and to the plaintiff F with respect to the share of 23/425, with respect to the share of 498,03,586, C, and 363,621,666, and 90,905,416, and each of the above money shall be paid to the plaintiff Ba from December 31, 1998 to the next day.

B. The defendant shall pay to the plaintiff B 36,791,868 won each of the 336,791,868 won to the plaintiff C, the plaintiff D, and the plaintiff E, 84,197,967 won each of the above amounts, and 5% per annum from December 31, 1998 to the date of the pronouncement of this case, and 20% per annum from the next day to the date of full payment.

(1) The Plaintiff filed a claim for the payment of the money stated in the Attachment 2, 3, and 4 as to each of the lands listed in the Attachment 2, 3, and 4’s real estate list, and filed a claim for the payment of the money stated in the Attachment 2, and 3’s claim for the payment of the money stated in the Attachment 4 as to each of the lands listed in the Attachment 2, 3’s real estate list on the ground that the claim for the payment of the claim for the transfer registration due to the primary completion of reimbursement was lost due to the Defendant’s tort, and the claim for payment of the money stated in the Attachment 4’s real estate list on the grounds that the claim for transfer registration was lost due to the Defendant’s tort. In addition, the Plaintiffs filed a claim in the form of the main and ancillary claim, as seen below, as to the time and method of calculating the amount of damages equivalent to the market price of each of the lands listed in the Attachment 4’s real estate list

2. Purport of appeal

The part against the plaintiffs in the judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

3. Revocation of the judgment on review of the purport of the request for review, and all appeals by the defendant against the plaintiffs are dismissed.

Reasons

1. Basic facts

(a) Distribution and inheritance of farmland of the network A;

1) The closed cadastral map of March 15, 1953 is indicated on the closed cadastral map, and the number, land category, and area of each land as shown in the attached Table 2, 3, and 4 were changed through the current process of division and consolidation, and the parcel number, land size, and area of each land as indicated in the attached Table 2, 3, and 4 were indicated in the current cadastral map. Each land listed in the attached Table 2 list of real estate as listed in the attached Table 2 list is the name of the defendant, the acquiring intervenor, and the land listed in the attached Table 3 in the attached Table 4 list of real estate in the name of the third party.

2) The land of approximately 30,000 square meters, including the farmland distributed in this case (hereinafter “the land of this case”) was forced by Japan during the Japanese colonial era, and the registration of ownership transfer was completed from 1942 to 1943 under the name of “national land”. However, since the land was not used for military facilities or military land, the land category on the register remains as a rice field, and was cultivated as farmland by the original cultivator. The farmland distributed in this case is farmland cultivated by the new public corporation, the managing agency of the farmland to which the land belongs after the tidal bank of this case, the Central Land Administration Office, and the corresponding part.

3) Upon its promulgation and enforcement on March 10, 1950, the head of Yeongdeungpo-gu Seoul Metropolitan Government, who has jurisdiction over the location of the farmland distributed under Article 32 of the Enforcement Decree of the Farmland Reform Act (amended by Act No. 561 of Oct. 13, 1960), conducted surveys on behalf of the farmland regarding the land subject to allocation under Article 32 of the Enforcement Decree of the said Act, prepared a daily schedule for distribution of farmland for each farm household, passed a resolution of the Farmland Committee, followed by the order of the Seoul Metropolitan Government Mayor's announcement on April 2, 1950 to 10 days from April 3, 1950 to 12 of the same month, each of the plaintiffs were deceased 47 o-64 o-64 o-6 o-6 o-6 o-6 o-6 o-6 o-6 o-o o-o o-o o o-o o-o o, respectively.

A person shall be appointed.

B. Civil litigation and original judgment against the Defendant of the deceased A

1) While the procedure for distributing farmland to the land of this case is in progress, those who received a farmland distribution from the Defendant paid part of the redemption payment during the period from 1950 to 1952, the Ministry of National Defense asserted ownership on the ground that the land of this case was a state-owned land managed by the Army from May 1953, and the Defendant did not receive more redemptionable rice.

2) In addition, the Defendant transferred the right to manage the land of the instant I Dong from the Ministry of National Defense to the Ministry of National Defense as one of the industrial promotion and refugee settlement relief projects on September 1, 1961, and had the Seoul Special Metropolitan City create an industrial complex. On August 1, 1961, the Seoul Special Metropolitan City started the new construction of 1,20 households for the removal of the market standard, 1,100 households, simplified houses, 1,100 households for the removal of the market standard, and completed the completion of construction and occupancy on August 1 through 9, 1962, and created the Korea Industrial Complex, LA, elementary schools, M market, private housing land, etc. on the land of the instant I Dong.

3) Accordingly, on March 18, 1967, the network A received farmland distribution from another 46 persons who received the distribution of the neighboring land of the instant farmland, and filed a lawsuit claiming ownership transfer registration against the Defendant at the Seoul Civil District Court, the first instance court of the instant case. The Seoul Civil District Court recognized that the farmland was legally distributed on March 12, 1967, and declared the judgment accepting the Plaintiffs’ claim (Seoul Civil District Court Decision 678235, the first instance judgment).

4) The Defendant appealed to Seoul High Court as Seoul High Court 68Na231 on April 2, 1969. The appellate court accepted the Defendant’s appeal and dismissed the Plaintiffs’ claim on the grounds that it is difficult to recognize the confirmation of distribution of farmland on the grounds that there was no evidence as to whether the farmland was distributed under the Farmland Reform Act by specifying the farmland to be distributed under the Farmland Reform Act and undergo procedures such as sight and receiving an objection, etc. for distribution of farmland (Seoul High Court 68Na231, Supreme Court Decision 68Na231, Supreme Court Decision 2000).

5) As the deceased Gap et al. appealed against the above appellate judgment, the Supreme Court reversed the above appellate judgment on March 24, 1970 on the ground that deeming the farmland distributed in accordance with the Farmland Reform Act was in accord with the empirical rule and logical rule to have been distributed (Supreme Court Decision 69Da687, and the remanded judgment).

6) On July 2, 1970 when the above case was pending in Seoul High Court 70Na1122, and around August 1, 1970, all of the plaintiffs except Dong Dong were withdrawn from the lawsuit of this case. The above court revoked the first instance judgment and dismissed the appeal of this case on the ground that the relevant criminal case became final and conclusive by the Supreme Court on June 26, 1979, and that part of the evidence was consistent with the fact that the distributed farmland of this case was distributed in accordance with the Farmland Reform Act on October 11, 1979, which was consistent with the fact that the farmland of this case was distributed in accordance with the Farmland Reform Act at the time of June 25, 1979.

C. Progress of civil litigation related to the land of the same case

1) Meanwhile, in addition to the plaintiffs in the instant case subject to review, many farmers, including the deceased N and 42, filed a lawsuit against the defendant claiming for ownership transfer registration against the defendant (the case claiming ownership transfer registration filed by the Seoul Civil District Court 65Do5470, the case claiming ownership transfer registration filed by the deceased N et al., and the case claiming ownership transfer registration filed by P et al., the Seoul Civil District Court 64Do5133, the case claiming ownership transfer registration filed by P et al., and the above court 64Do2625, the case filed by P et al.). The defendant lost most of the aforementioned nine civil cases.

2) From 1968 to 1970, the Defendant conducted an investigation into the parties involved in the claim for ownership transfer registration with respect to the land of this case, and filed a petition for a new trial with respect to the four civil final and conclusive judgments which became final and conclusive against the Defendant among the civil final and conclusive judgments on the land of this case relating to the land of this case. The trial of the new trial court with respect to the above four cases was interrupted during the criminal proceedings related to the land of this case, and were resumed only after the completion of the said criminal proceedings in 1984. The Defendant submitted to the new trial court as evidence the criminal litigation records related to the land of this case including the criminal judgment and investigation records, and received a final and conclusive judgment of the Defendant in all the above four cases.

D. Investigations and criminal proceedings related to the I-dong land of this case

1) When the civil action filed by the above net N and 42 out of the civil lawsuit related to the land of this case against the defendant was finalized on March 19, 1968 by the Supreme Court's dismissal judgment (Supreme Court Decision 68Da106 Decided March 19, 1968), the Seoul District Prosecutors' Office testified to the effect that "the defendant was aware of the manipulation of farmland distribution documents" on March 23, 1968 and that "the defendant was aware of the fact that farmland was distributed" in the above civil lawsuit, the Seoul District Prosecutors' Office detained Q public officials belonging to the Ministry of Agriculture and Forestry, and started an investigation into public officials in charge of farmland of each agency.

2) In addition, on April 16, 1968, the judgment against the defendant was finalized by the Supreme Court against the defendant (Supreme Court Decision 68Da901). On April 19, 1968, Seoul District Prosecutors' Office detained three of the above networks0, such as the network N and public officials R, on the charge of fraud or perjury, preparation of false documents, and the suspicion of these events, and entered the victim 42 under undetained confinement. On July 16, 1968, the civil action filed by the above 0 and 84 persons against the defendant was finalized against the defendant on the judgment of the Supreme Court dismissed on July 16, 1968 (Supreme Court Decision 68Da804). On September 20, 1968, Seoul District Public Prosecutor's Office launched the investigation into the above victim's network, 00N, NAN, NAV, and 13 others on the ground that public officials were detained on the defendant's fraud and evidence, YY and 2 others on the prosecution.

3) From March 1968 to July 1970, the Seoul District Prosecutors' Office continued the investigation into the instant case [as to the farmers who filed a civil lawsuit against the defendant and the public officials who testified in conformity with their arguments, the investigation was conducted for the 4,5 days illegal confinement or partial detention without a warrant of detention, and the investigation agency forced certain witnesses to withdraw and waive their rights by assault and harsh acts, and made certain witnesses to make a false testimony by intimidation, deception, and deception during the trial. Ultimately, 104 persons who waived the withdrawal or right of a civil lawsuit before the request for a warrant of detention was detained, and 39 persons who were subject to a non-prosecution disposition after the withdrawal or waiver of their rights before the prosecution was detained, including the deceased A, and 41 persons who were finally prosecuted, including the deceased A.

4) As above, 41 persons, including farmers who filed a lawsuit claiming ownership transfer registration and public officials who testified in the process of the examination of the civil procedure, who filed a lawsuit claiming ownership transfer registration, were charged with a criminal trial (Seoul Criminal Court Decision 68Da42609, 69Da13577, 6929, 70127529, 70130743, 68Da42609, April 26, 197; 68Da42609, June 29, 197; 68Da42609, June 29, 197; 68Da42609, June 29, 197; 5Do657, June 26, 197). The above criminal trial was reversed by the lower court (Seoul Criminal Court Decision 745135, June 29, 197; 5Do759, June 5, 1975).

5) In collusion with the plaintiffs in the above criminal trial, the plaintiff Eul, the plaintiff in the case subject to review, filed a lawsuit against the defendant in the first instance trial by manipulating the cause of the suspension that the farmland distributed in this case was repaid in accordance with the Farmland Reform Act and the enforcement Decree of the same Act, and subsequently, the court ordered the defendant to verify it by means of the destroyed repayment ledger, etc. and submit false statements to R, AG, etc., and ordered the defendant to make a false statement, etc., the plaintiff was sentenced to the suspension of the execution of August 26, 1979 (Seoul High Court Decision 745135 delivered on January 26, 1979). The plaintiff was sentenced to imprisonment with prison labor for 1979 and 26.

E. The truth-finding findings by the Korean War Mediation Commission for the truth-finding and reconciliation

1) On May 26, 2006, 155 persons, including some of the Defendants and their bereaved family members, who were convicted in the criminal cases related to the land of the Idong-dong, filed an application for the truth-finding and restoration of honor with the Korean Film Mediation Committee for the Truth and Reconciliation (hereinafter referred to as the “Committee”).

2) On July 8, 2008, the past reorganization committee ordered a criminal case related to the land of the same case as â€˜the suspicion of fraud in I distributed farmland lawsuit'. On July 8, 2008, the court conducted a truth-finding decision to the effect that the state interventions in civil litigation in order to achieve administrative objectives, thereby unfairly abusing the public authority. Furthermore, at the time of â€˜the fact-finding decision, it is difficult to hold the farmers who raised the civil litigation related to the land of the same case liable for the litigation fraud, and it is difficult for them to bear the responsibility for the litigation fraud, and it constitutes the grounds for retrial under the Criminal Procedure Act to force the waiver of rights and perjury illegally by collectively committing unlawful acts by farmers.'

F. Defendant and the bereaved family member’s request for retrial against criminal litigation related to the land of the first unit of this case

1) On February 4, 2009, part of the defendants who were convicted in the criminal cases related to the land of the first instance case among the defendants 26, who were still alive, and the defendants who died, including the plaintiff B, who were the legal system of the deceased Gap, on February 4, 2009, based on the fact-finding decision, etc. of the past by the Seoul Central District Court on February 18, 1974, the Seoul Central District Court rendered a request for a retrial against the Seoul Central District Court Decision 68Da42609, 69, 1357, 69, 13577, 69, 29, 29382, 70127529, 70130743 (each consolidation) (the request for a retrial against 23 of the defendants who were final and conclusive of the crime of oil).

2) On November 29, 201, the Seoul Central District Court rendered a judgment of innocence against 21 among 23 Defendant 23 Defendant 2, including the deceased A, on the inventory group 3, 6, 9 (combined) on November 29, 201 (hereinafter “instant first criminal review judgment”). However, the remaining two Defendant (Nonindicted AH and the above network R)’s request for a retrial was rejected. The final judgment of conviction against the above two Defendant is not the judgment of first instance but the judgment of appellate court, and thus, it was unlawful to file a request for a retrial based on the judgment of first instance. Meanwhile, the first criminal review judgment of this case was final and conclusive on December 7, 2011 without appeal by a prosecutor.

3) On August 10, 2010, the bereaved family members of the above network AH and network R whose request for retrial was dismissed were re-written by the Seoul Central District Court (Seoul Central District Court Decision 83No459 decided Sept. 20, 201) and the above court Decision 745135 decided Jan. 26, 1975 (the above network AH) again (the Seoul Central District Court Decision 2010No25, 26). The Seoul Central District Court accepted all of these decisions on Jan. 27, 2012 and rendered a judgment of not guilty on the above network H and network R (hereinafter referred to as "the above judgment of criminal case No. 2 and 3 criminal case"), and the prosecutor's appeal was not finalized on Feb. 24, 2012.

G. Deposit of money equivalent to the plaintiffs' repayment principal

On August 16, 2012, Plaintiff B, the heir of the deceased Party A, deposited the total amount of KRW 160 [160 (6.43 x 14.8 x 14.8 x 148 x 10 x 14.8 x 10 won] converted the farmland price of the distributed farmland of this case under Article 5(1) of the former Act on Special Measures for the Adjustment of Farmland Reform Project (hereinafter referred to as the “Special Coordination Act”) into the amount of outstanding redemption, the total amount of the farmland price for the distributed farmland of this case, converted into the amount of KRW 14.8 won, which was the price of grain received from 14.7 x 14.8 x 14.8 x 14.8 x 10 x 14.8] at the time of distribution in 1950.

[Ground of recognition] Unsatisfy facts, work-related significant facts, Gap evidence Nos. 1 through 24 (including each number), the result of a cadastral survey appraisal by a trial appraiser, the purport of the whole pleadings

2. Determination on grounds for retrial, etc.

(a) Whether the period for filing a request for retrial is observed;

1) Article 456(1) of the Civil Procedure Act provides, “A lawsuit for retrial shall be instituted within 30 days from the date the relevant party becomes aware of the grounds for retrial after the judgment becomes final and conclusive,” and Article 456(3) thereof provides, “No lawsuit for retrial shall be instituted when five years have passed after the judgment became final and conclusive

2) In addition, the term “when a judgment or any other judgment or administrative disposition on a civil or criminal case, which is the basis of a judgment, which is the grounds for a retrial as stipulated in Article 451(1)8 of the Civil Procedure Act, is changed by a different judgment or administrative disposition” means a case where the judgment or administrative disposition, which is the basis of a judgment, is legally binding, or which is the basis of fact-finding in a final judgment, is changed by another judgment or administrative disposition after that judgment or administrative disposition (see, e.g., Supreme Court Decision 200Da12679, Dec. 14, 200).

3) According to the above facts, the first criminal review judgment against the deceased Gap was rendered on November 29, 201, and became final and conclusive on December 7, 2011. It is evident in the record that the deceased Gap filed a lawsuit for the retrial of this case on January 4, 2012. Therefore, the lawsuit for retrial of this case is lawful in compliance with the period of release of 30 days under Article 456(1) of the Civil Procedure Act. The defendant’s defense on this part is without merit.

B. Whether there is a ground for retrial

1) Comprehensively taking account of the purport of Gap evidence No. 2-4 (Examination of Evidence), Gap evidence No. 2-1, No. 22 (Examination Records and Investigation of State Farmland), Gap evidence No. 3-5 (Examination Records of Witnesses), Gap evidence No. 24-1, 27-1, and 34 (Examination Records of Witnesses), Gap evidence No. 34-2 (Examination Records of Witnesses), Gap evidence No. 35-2 (Examination Records of Witnesses), Gap evidence No. 35-1 and evidence No. 4 (Examination Records of Witnesses), and other evidence No. 5-2 were found to be insufficient to find that Gap evidence No. 2-1 were distributed to Gap evidence No. 9 (Examination Records of Witnesses), Gap evidence No. 2-1 and evidence No. 35-4 (Examination Records of National Farmland Distribution), and the remaining evidence No. 9-1 and evidence No. 2-14 (Examination Records of Farmland Collection).

2) However, in full view of the facts acknowledged earlier and the following circumstances recognized by each of the aforementioned evidence, it is reasonable to view that each evidence used as the basis for rejecting the request of the deceased A in the judgment subject to a retrial was lost due to the final and conclusive judgment rendered by each of the first and third criminal judgments rendered in the instant case, and thus, there is a ground for retrial in the instant judgment subject to a retrial, where the criminal judgment, which served as the basis for the judgment under Article 451 subparag. 8 of the Civil Procedure Act, was altered by another judgment.

A) First, the reason for rejecting the evidence that conforms to the plaintiffs' claims in the judgment of retrial is that it was made based on the fact that the deceased et al. made a false report when making a related document about farmland reform after a uniform receipt or that it is revealed that it was a perjury. However, this reason is no longer maintained as it was accepted by the review of the relevant criminal conviction by the judgment of conviction by the first or third criminal review of this case, and it became final and conclusive for not guilty.

B) Next, in light of the fact-finding acknowledged in the judgment subject to a retrial and the fact-finding recognized in the judgment of conviction of the first instance against farmers, including the deceased A, almost identical, Eul evidence Nos. 22 ( Indictment) and Eul evidence Nos. 27 through 29 (each judgment) are the indictment of the criminal case punished by farmers, including the deceased, and the prosecution Nos. 1 and 24 through 26 (each written statement) appear to be part of the protocol of the first instance court’s conviction as evidence, and the evidence Nos. 24 through 26 (each written statement) appears to be part of the protocol of the first instance court’s conviction. In addition, as the review of the relevant criminal judgment of conviction was accepted by the judgment of the first to 3 criminal sanctions of this case, it cannot be said to be admitted as evidence

C) Also, the testimony of the witness AJ and witness AK at the appellate court prior to the remanding of the first instance trial appears to be the testimony of the public official in charge of farmland distribution at the time. As to the above net R, which was sentenced to criminal punishment for perjury on the ground that the distribution farmland of this case was distributed in accordance with the Farmland Reform Act, was testified as a public official in charge of farmland distribution affairs at the time, such as distributed farmland of this case, etc.

D) Furthermore, in collusion with the rest of the lawsuit in the first instance court, the Plaintiff, the Plaintiff of the case subject to review, filed the lawsuit in the first instance court against the Defendant by manipulatinging the cause of the revocation that the farmland distributed in this case was repaid through distribution in accordance with the farmland Reform Act and the enforcement decree of the same Act, and filed the lawsuit in the first instance court against the Defendant, and attempted to obtain 25,903 of the land owned by the Defendant and attempted to obtain 25,903 of the land owned by the Defendant, and the final judgment of conviction was rendered. However, as recognized earlier, the Plaintiff’s request for retrial was accepted, and the judgment of innocence (the first criminal trial of this case) became final and conclusive.

3. Judgment on the merits

(a) A request for ownership transfer registration due to completion of redemption (attached Form 2 and the surrounding claim related to each parcel of land listed in the real estate list);

1) Summary of the plaintiffs' assertion

The plaintiffs sought the implementation of the procedure for the transfer registration of ownership based on the completion of the repayment with respect to the distributed farmland of this case, but did not pay the repayment due to the defendant's organized illegal acts and criminal acts. Since the defendant deposited the money equivalent to the repayment with respect to the distributed farmland of this case during the retrial lawsuit of this case, the defendant is obligated to implement the transfer registration procedure for ownership transfer based on the completion of repayment with respect to each land listed in the attached Table 2 list of real estate owned by the defendant as to each land listed in the attached Table 3 list of real estate owned by the defendant.

2) Determination

A) The former Farmland Act (amended by Act No. 4817 of Dec. 22, 1994 and enforced January 1, 1996) has repealed the former Farmland Reform Act and Special Assistance Act in Article 2 of the Addenda. Article 3 of the Addenda provides, "The repayment and registration, etc. of farmland for distributed farmland whose repayment and registration, etc. have not been completed at the time of enforcement of this Act shall be completed within three years from the enforcement date of this Act". According to the above provision, there is no provision on the payment of farmland after the three-year period has elapsed from the enforcement date of the Farmland Act, and even after the payment of farmland was made, it is impossible to acquire ownership under the provisions of the Act because it is not possible to obtain ownership under the provisions of the Act since the payment of farmland was not completed within three years from the enforcement date of the Farmland Act, and there is no further procedure for distributing farmland, which is the procedure for distributing farmland, and therefore, it shall be interpreted that the aforementioned farmland is not returned to the owner of the farmland (see, e.g., Supreme Court Decision 200208 won.

B) According to the facts acknowledged earlier, the deceased A received the distribution of the farmland of this case from the Defendant under the former Farmland Reform Act, and the Plaintiff B, the deceased’s heir, deposited the conversion price of the farmland of this case on August 16, 2012 during the new trial proceeding. In light of the aforementioned legal principles, inasmuch as the Plaintiffs, the deceased’s heir, up to December 31, 1998, did not complete the repayment and registration of the farmland of this case as to the distribution of this case, the Plaintiffs were unable to repay the farmland of this case, which is the procedure for distribution, pursuant to Article 3 of the Addenda of the former Farmland Act, with respect to the farmland of this case, and the Plaintiff B, the deceased’s heir, deposited the conversion price of the farmland of this case on August 16, 2012 due to the new trial proceeding of this case, the Plaintiff’s claim for payment of the farmland of this case cannot be made more impossible for the Plaintiff’s claim for payment of the farmland of this case without any special reason under the provisions of the Farmland Reform Act.

C) As to this, the Plaintiffs asserted that, due to the Defendant’s systematic illegal acts and criminal acts, the payment of farmland was not made by the deadline under Article 3 of the Addenda to the Farmland Act, and that the Defendant or the Intervenor’s refusal of the implementation of the procedure for ownership transfer registration of each land listed in the attached Tables 2 and 3 real estate list by reason of Article 3 of the Addenda

However, as seen below, it is separate from the fact that the defendant's tort liability is recognized that the plaintiffs lose their rights as a result of failure to repay and register farmland price for the distributed farmland by the deadline under Article 3 of the Addenda of the Farmland Act even though the plaintiffs were legally distributed the distributed farmland of this case. The plaintiffs' failure to acquire ownership under the former Farmland Reform Act was made impossible due to the failure to repay farmland price for the distributed farmland of this case as seen above. The defendant or the defendant acquiring intervenor's assertion also is merely an assertion as to the attribution of ownership of distributed farmland in accordance with the purport of Article 3 of the Addenda of the former Farmland Act, and it cannot be deemed that the above assertion is contrary to the principle of good faith (see, e.g., Supreme Court Decision 2005Da64552, Nov. 29, 2007).

(b) A claim for damages caused by a tort (a preliminary claim related to each land listed in attached Tables 2 and 3 and a claim related to each land listed in attached Table 4);

1) Summary of the plaintiffs' assertion

A) Although the deceased Gap was legally distributed the distributed farmland of this case, the defendant argued that the land of this case, including the distributed farmland of this case, was owned by himself, refused to receive repayment rice, and thereby obstructed the exercise of the rights by unlawful means. As a result, the period under Article 3 of the Addenda of the former Farmland Act regarding the distributed farmland of this case has expired, or the acquisition by prescription of the registration titleholder due to the transfer of ownership in the name of a third party, became disqualified as a distribution obligee.

B) Therefore, the Plaintiffs were unable to acquire ownership of the distributed farmland of this case as a result of the Defendant’s tort, thereby incurring damages equivalent to the value of each land listed in the real estate list as shown in the attached Forms 2, 3, and 4, and thus, the Defendant is obligated to pay damages to the Plaintiffs for damages incurred by the tort, the amount according to the inheritance shares and damages for delay

C) The plaintiffs shall be equivalent to the market price of each of the above lands as of December 1, 2012 near the date of the closure of fact-finding proceedings, and the portion currently used as roads shall be 1,67,64,00 won for the aggregate of the market price of each of the lands listed in the preceding 3 real estate list, 1,679, 774,00 won, 4,814, 456, 00 won for each of the lands listed in the annexed 4 real estate list, 200 won for the aggregate of 30 won, 30 won for the aggregate of 960 won for each of the real estate list, 30 won for the land listed in the annexed 45, 205, 30 won for the aggregate of 90 won for each of the above real estate list, 30 won for the aggregate of 90 won for each of the market price listed in the annexed 2, 308 won for each of the above real estate list, 9607, 197, 79708 won for each land price for each.

2) Occurrence of damages liability

A) Grounds for liability

Comprehensively taking account of the following circumstances revealed in the facts acknowledged earlier, when the judgment against the Defendant became final and conclusive in a series of illegal acts from May 1953 to October 11, 1979, namely, the creation of an industrial complex without receiving redeemable farmland, and in a civil lawsuit related to the land of the same case, the judgment against the Defendant became final and conclusive, such as by mobilization of governmental authority, such as investigation agency, manipulating of evidence, etc., the Defendant was convicted of charges of attempted criminal acts, etc., and the judgment dismissing the Defendant’s claim against the Defendant becomes final and conclusive by submitting a criminal judgment, etc. against the Defendant’s conviction as evidence in a civil lawsuit against the Defendant against the Defendant, which was duly distributed the farmland of this case by the deceased and its heir, the Plaintiffs were deprived of their duty to compensate the Plaintiffs for damages arising from the failure to complete repayment and registration of the farmland of this case by December 31, 1998, as set forth in the main sentence of Article 2 of the State Compensation Act.

(1) From May 1953, the Defendant asserted the ownership of the instant piece of land, including the instant piece of land, and did not receive more repayment rice, and began to build K Industrial Complex from August 1961. The Defendant filed a lawsuit claiming ownership transfer registration against the Defendant on March 18, 1967, along with another 46 person who received the distribution of the instant piece of land adjacent to the instant piece of farmland, on the ground of the completion of repayment against the Defendant.

(2) When the dismissal of the appeal by the Supreme Court against the defendant was decided in a civil suit related to the land of the same case, the defendant: (a) filed a lawsuit claiming ownership transfer registration by asserting that the land of the same case including the deceased A was distributed from March 1968 to July 1970; and (b) filed a lawsuit claiming ownership transfer registration with the aim to have the farmers and the public officials testified in the process of the deliberation of the civil suit give up their rights to the distributed farmland required by the defendant; (c) mobilized the investigative agency to force the withdrawal or waiver of the right by abusing public power in a systematic and systematic manner to force illegal confinement, assault, cruel acts involving criminal punishment by abusing public power; and (d) intimidation and false testimony to some witnesses during the trial process.

(3) On July 26, 1970 when the case of remanding the case of this case was pending, the plaintiffs except the deceased Gap voluntarily withdrawn the lawsuit of this case. However, the deceased Gap did not withdraw the lawsuit of this case, and this judgment became final and conclusive on December 7, 2011 by the judgment of the dismissed judgment on June 26, 1979, on the following grounds: (a) the plaintiff, the heir of the deceased, was indicted for the reason that the distribution of the farmland of this case was performed without being lawfully distributed in the relevant criminal case; and (b) the deceased attempted to acquire the distributed farmland of this case and was sentenced to a suspended sentence of two years; and (c) the judgment of the dismissed judgment became final and conclusive on June 26, 1979; (d) the plaintiff, the heir of the deceased, was accepted the request for a retrial by the plaintiff B; and (e) the judgment of not guilty was finalized on December 7, 2011.

(4) On the other hand, in the case of remanding the case of this case, when the deceased A was found guilty in the above criminal case, the court below revoked the judgment of the first instance of this case on October 11, 1979 and dismissed the deceased A’s request for the performance of the procedure for the transfer of ownership of this case on the grounds of repayment completion, and the above judgment became final and conclusive due to the waiver

(5) On July 8, 2008, the Plaintiffs, the deceased’s successors, filed a petition for a new trial with respect to the criminal final conviction judgment only after the decision to voluntarily investigate the facts of the past company reorganization committee was made, and the request for a new trial was accepted and the judgment of not guilty became final and conclusive, the right to the distributed farmland of this case can be exercised. Thus, it is difficult to view that even the Defendant’s refusal to receive the payment of the farmland of this case should have completed the procedure, such as the redemption price and registration for the distributed farmland of this case, even by means of payment deposit, etc.

B) Judgment on the Defendant’s defense of extinctive prescription

(1) Defendant’s defense

(A) Even if the right to claim damages is acknowledged by the Defendant, since the statute of limitations has expired, the right to claim damages against the State under the former part of Article 2(1) of the State Compensation Act is extinguished unless it is exercised for the five-year period under Article 71(2) and (1) of the former Budget and Accounts Act (amended by Act No. 8050 of Oct. 4, 2006) or Article 96(2) and (1) of the National Finance Act. In this case, the statute of limitations begins from "when it can be deemed that the victim actually suffered losses due to the act of harm" regardless of whether the victim knew or could have anticipated the occurrence of damages (see Supreme Court Decision 2004Da71881, May 13, 2005). In addition, the right to claim damages against the State is a right based on the existence of the original claim and the right to claim payment against the State is extinguished within the specified period of prescription under the above Act.

(B) Damages arising from the loss of the right to claim reimbursement by the Plaintiffs were realistic as of December 31, 1998, as stipulated in Article 3 of the Addenda to the Farmland Act. It is apparent that the Plaintiff’s first application for change of the purport of the instant claim and the cause of the claim was made on August 16, 2012. Therefore, the Plaintiffs’ claim for damages in this case occurred five years prior to the date of application for change, and thus, the extinctive prescription has already been completed.

(2) The plaintiffs' second defense of abuse of rights

(A) As to this, the Plaintiffs’ assertion of extinctive prescription constitutes a violation of the good faith principle or an abuse of rights, since the Defendant’s exercise of rights or interruption of prescription was impossible or considerably difficult before the completion of the prescription period, or there was an objective obstacle that the Plaintiffs cannot claim damages against the State.

(B) The obligor’s exercise of the right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act, and thus, the obligor is not allowed to claim the completion of the statute of limitations as an abuse of rights against the principle of good faith where special circumstances exist, such as: (a) the obligor has made it impossible or significantly difficult for the obligee to exercise his right or the interruption of prescription prior to the completion of the statute of limitations; (b) the obligor has acted to believe that such measures are unnecessary; (c) the obligee has objectively obstructed the obligee from exercising his right; or (d) the obligor has shown the same attitude that the obligor would not invoke the statute of limitations after the completion of the statute of limitations; or (e) the obligor has made the right holder trust as such; (e) the need to protect the obligee; or (e) other creditors have received the repayment of the obligation under the same condition significantly unfair or unfair (see, e.g.

In light of the above legal principles, as seen earlier, ① the deceased filed a lawsuit claiming ownership transfer registration against the defendant on March 18, 1967, with 46 other investors who received distribution of farmland of this case as to distribution of distributed farmland of this case. ② The defendant abused public authority systematically and systematically, and forced the defendant to file a lawsuit for withdrawal by committing illegal confinement, violence, cruel acts, etc. accompanied by criminal punishment for the purpose of giving up the rights to distributed farmland of this case to farmers including the deceased A, and ③ the deceased did not withdraw the lawsuit of this case, the defendant was sentenced to a suspended sentence of 2 years for 8 months due to criminal facts, such as attempted fraud of the lawsuit of this case. The defendant's criminal judgment of this case was not affected by the above guilty criminal judgment, and thus, it is reasonable to view that the defendant's criminal judgment of this case against the above defendant's 1, which affected the judgment of the court of first instance, and that the defendant violated the right to defense against the defendant's heir of this case's 2, which became final and conclusive.

3) Scope of liability for damages

A) Damage to property due to a tort refers to the difference between the property disadvantage caused by an illegal harmful act, that is, the property condition that would have existed without the tort, and the property condition difference after the illegal act became effective (see, e.g., Supreme Court Decision 2011Da25695, Dec. 13, 2012). The damages arising from the tort committed by the Plaintiff B, who deposited the deposited person as the Defendant, deposited the amount calculated at the price received under Article 5 of the Act on Special Cases Concerning the Distribution of Farmland with the outstanding amount of farmland payment, as stated above, by the Defendant’s series of illegal acts, i.e., the receipt of redemption rice, and if the Plaintiff did not constitute a tort, such as the creation of a single piece of land, including the distribution farmland, as the distribution of the farmland in this case, as the distribution of the farmland in this case, before the distribution of the farmland in this case was made to K, but the damages arising from the above illegal acts were not acquired due to the Defendant’s illegal act in this case.

B) Therefore, the damages suffered by the plaintiffs due to the above illegal acts of the defendant are equivalent to the market price calculated on the basis of the preceding day as at December 31, 1998, which is the current situation at the time of distribution of each land listed in the attached Table 2, 3, and 4 real estate list. In full view of the result of the market price appraisal and the purport of the whole pleadings, the amount equivalent to the market price of each of the above land is recognized as totaling 3,235,606,00 as stated in the attached Table 1 "Appraisal Amount" column, and if it is divided according to the plaintiffs' respective inheritance shares, the total amount of 3,235,62,014 won (=3,235,606,000 won X 126/425,00 won, hereinafter the same shall apply), the plaintiff C, D, the plaintiff 1 and the plaintiff 1 were 700,413,534,362,305,25363

4) Sub-committee

Therefore, the defendant is obligated to pay damages for delay calculated at each rate of 20% per annum under the Civil Act until May 10, 2013, which is the date of the judgment of the court of first instance, as to the existence or scope of the obligation to pay damages for the plaintiff B, as to the damages for the above tort, KRW 959,262,014, the plaintiff C, the plaintiff D, and the plaintiff E, KRW 700,413,534, respectively, and KRW 175,103,383, and each of the above amounts to the plaintiff F, from January 1, 1999 to the date of the above damages for delay, as to the existence or scope of the obligation to pay damages for delay.

4. Conclusion

Therefore, the judgment subject to a retrial has a ground for retrial, and it shall be revoked, and its primary claim against the defendant and the intervenor for defendant and defendant as to each land listed in the attached Tables 2 and 3 shall be dismissed for lack of any ground. The plaintiffs' conjunctive claim related to each land listed in the attached Tables 2 and 3 real estate list against the defendant and the claim related to each land listed in the attached Tables 2 and 4 real estate list against the defendant shall be accepted within the above scope of recognition, and the remaining claim shall be dismissed for lack of any ground. Accordingly, the judgment of the first instance shall be modified

Judges

The presiding judge, judges and assistant officers;

Judges Kim Jae-sik

Judges Kim Gung-sik

Note tin

1) Farmland Act, Article 5 (Receipt of Unrepaid Amount) 2 of the Farmland Reform Act, the amount of farmland unrepaid and excessive government-related Acts and subordinate statutes

The amount of credit pursuant to the provisions of subparagraph 173 shall be the amount calculated at the price received from government management in the corresponding farmland distribution year.

shall receive.

2) The evidence in this subsection and sub-paragraph 2 above refers to the evidence presented in the judgment subject to a retrial.

3) The plaintiffs shall not exercise their rights as a receiver of the deceased's water as to each land listed in the separate list of real estate.

by transferring ownership to a third party and completing the registration of transfer of ownership in the name of the registered titleholder.

As a result of the completion of prescription, the plaintiffs have lost their rights as a distributor, and in this case, the damages arising therefrom.

at the time of birth is final and conclusive against a claim for cancellation of registration filed against a third party, or in the case of this case, section 3

Since it is apparent that a person can assert the prescription period for acquisition of registry, the time of the conclusion of the fact-finding proceedings in this case or the plaintiffs.

In the future, the final and conclusive judgment against the present owner of the distributed farmland of this case by filing a lawsuit for ownership transfer registration;

The time of the occurrence of the damage is the time of the occurrence of the damage. However, as seen above, the net A or the plaintiffs' farmland.

The distribution right of farmland has not been completed until December 31, 1998 as provided for in Article 3 of the Addenda of the Act.

As a result of the judgment of the court, such as a claim for ownership transfer registration against the present owner of the distributed farmland of this case

The occurrence of the result of the damage has already been realized without any reason.

4) In principle, the initial date in reckoning damages for delay caused by tort is the date of establishment of tort (see Supreme Court Decision 1975.

The illegality in tort is committed in relation to illegal acts, including Supreme Court Decision 74Da1393 delivered on March 9, 1993, Supreme Court Decision 92Da48413 delivered on March 9, 1993, etc.

If there is a time difference between the time of the act and the time of the damage, the time of the damage shall be the initial date.

As seen earlier, the damages arising from the tort committed by the court (see Supreme Court Decision 2010Da76368, Jul. 28, 2011)

With the passage of December 31, 1998 as stipulated in Article 3 of the Addenda to the Farmland Act of the Gu, the occurrence of the result of the damage was realized.

심급 사건

-서울민사지방법원 1967.12.30.선고 67가2335

-서울고등법원 1969.4.2.선고 68나231

-대법원 1970.3.24.선고 69다687

-서울고등법원 1979.10.11.선고 70나1122

서울고등법원 2013.5.10.선고 2012재나129

-대법원 2017.11.29.선고 2013다41769

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