Where the State occupies land for twenty (20) years and the prescriptive acquisition is completed, whether the landowner may exercise the right to compensate for losses under the Act on Special Measures for Compensation for Land Incorporated into River (affirmative)

In the event that the acquisition by prescription is completed by occupying land for twenty (20) years, it is difficult to view that the State is in the position to exercise the right to ownership against the State because the owner of the land bears the obligation to implement the procedure for the registration of ownership transfer on the ground of such fact. Meanwhile, Article 2 of the Addenda to the amended River Act (Act No. 3782) included the river area as a river area and provided the legal basis for receiving compensation for State-owned private land without compensation. Furthermore, the Act on Special Measures for the Compensation for Land Incorporated into River (hereinafter “the Act on Special Measures for the Compensation for Land incorporated into River”) permits the State to claim compensation even if the extinctive prescription of the right to claim compensation for damages under the River Act expires, even after the lapse of the time, the purpose of the relevant Act is to guarantee the property right of the State without compensation. However, even though the State had been in the position to acquire the ownership of the land by filing a claim for the registration of ownership transfer for the completion of the acquisition by prescription against the owner, it is difficult to accept the claim for compensation based on the principle of property right acquisition.

On the other hand, the above legal principle applies to cases where the land was incorporated into the river area without the ownership due to the State’s failure to obtain the ownership due to the completion of the prescriptive acquisition for the land, and as a result, the ownership of the land was lost. Thus, it cannot be applied where the State already acquired the ownership of the land at the

Article 23 of the Constitution of the Republic of Korea; Article 245(1) of the Civil Act; Addenda of the former River Act (wholly amended by Act No. 5893, Feb. 8, 199); Article 2 of the former River Act (wholly amended by Act No. 5893, Dec. 31, 1984); Articles 1 and 2 of the Act on Special Measures for Compensation for Land Incorporated into Rivers

Plaintiff 1 and two others (Law Firm Barun, Attorneys Kang Jon et al., Counsel for the plaintiff-appellant)

Gyeonggi-do (Attorney above-at-law)

Seoul High Court Decision 2014Nu73847 decided January 29, 2016

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

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

1. As to the assertion of misapprehension of the legal principle as to autonomous possession

A. If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the property in good faith, peace, and public performance with his/her own intent under Article 197(1) of the Civil Act. This presumption applies likewise to cases where the State or a local government (hereinafter collectively referred to as “the State, etc.”) that is the managing body of the cadastral record, etc. takes possession of the property. In addition, even if the possessor asserts the title of possession, such as purchase and sale or donation, but not recognized as such, unless the possessor bears the burden of proving the source of possession, the presumption of possession is reversed or the possessor is not deemed to have taken possession in light of the nature of the source of possessory right (see, e.g., Supreme Court Decisions 9Da72743, Feb. 26, 2002; 2006Da28065, Feb. 8, 2007).

B. (1) The lower court and the first instance court as cited by the lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

① The instant land was incorporated as a river area around the time of construction works of the Anyang Sea Areas and Postal Areas among the Anyang Sea Areas, which was constructed in 1932 to 1934, and is used as a river area of Anyang River until now.

② Since 1934, the Republic of Korea has been occupied and managed directly or through the management agency, including the above bank since the completion of the above-mentioned construction work.

③ Ansancheon was designated as a national river pursuant to the River Act, which was enacted by the Cabinet Order No. 1255 on April 1, 1963, pursuant to Article 2 of the River Act, and the designation of a section, and the instant land was determined and publicly announced as a river area in Ansancheon on June 1, 1964 by the Construction Division public notice No. 897.

(2) On the premise of the above facts, the lower court determined that, even if the Defendant did not submit the documents on the procedure for acquiring the land of this case, it did not reverse the presumption of autonomous possession of the land of this case, and thus, it was concluded that the State occupied the land of this case without permission, in addition to the circumstance and purpose of the possession of the land of this case, the land adjacent to the land of this case was normally purchased by the State in 1933, and there was a provision that compensates the landowner who suffered damage due to river construction works at the time of the river-related Acts and subordinate statutes, the lower court determined that the prescription period of the Republic of Korea was completed on December 31, 1954.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the record, the lower court’s determination that the Defendant’s presumption of possession did not reverse is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the presumption of possession of the burden of proof or acquisition

2. As to the assertion of misapprehension of legal principles as to compensation for land, the prescriptive acquisition period has expired

A. According to the reasoning of the lower judgment, the lower court rejected the Plaintiffs’ claim for compensation based on the relevant provisions of the former River Act (wholly amended by Act No. 2292, Jan. 19, 1971) on the ground that, even if the prescriptive acquisition of real estate is completed, the possessor may file a claim against the nominal owner for the implementation of the procedure for the registration of transfer of ownership on the ground of the completion of the prescriptive acquisition, and the nominal owner is obligated to comply therewith, so the nominal owner cannot exercise his/her right based on ownership against the possessor for whom the prescriptive acquisition has been completed, and thus, a person who was unable to claim the right based on ownership against the Defendant who occupied and managed the instant land by delegation from the State at the time of the acquisition of the land in question cannot exercise his/her right to compensation under the said Act.

B. However, the reasoning of the lower judgment is difficult to accept in the following respect.

In the event that the acquisition by prescription is completed by occupying land for twenty (20) years, it is difficult to view that the State is in the position to exercise the right based on ownership against the State because the owner of the land bears the obligation to obtain ownership transfer registration procedure on the ground of such fact. Meanwhile, ① the legal basis for receiving compensation for the State-owned private land as a river area under Article 2 of the Addenda to the amended River Act (Act No. 3782) has been established, and further, the Act on the Compensation for Land incorporated into a river grants compensation for the expiration of the extinctive prescription period under the River Act. The purpose of the relevant Act is to guarantee the property right of a person who lost ownership without any compensation as a river area even after the lapse of time, regardless of the lapse of time. ② The purpose of the relevant Act is to enable the State to acquire ownership of the relevant land by filing a request for ownership transfer registration on the ground of the completion of the acquisition by prescription against the owner, which was transferred to the State while the State was exercising its right at time and the owner's right to claim for compensation is completed only on the ground for the completion of the acquisition by prescription.

Nevertheless, even if the plaintiffs acquired the claim for compensation for damage caused by the plaintiffs' transfer of the land as part of river area, the court below held that as long as the state at the time is in a position to implement the registration procedure for transfer of ownership based on the completion of prescriptive acquisition, it cannot exercise the rights based on ownership, the claim for compensation under the River Acquisition Compensation Act cannot be made. In so doing, the court below erred by misapprehending the legal principles on compensation for damage under the Act on the Compensation for Land Incorporated into the River.

C. Meanwhile, the foregoing legal principle applies to the case where the pertinent land was incorporated into a river area without the ownership due to the State’s failure to obtain the ownership, notwithstanding the completion of the prescriptive acquisition for the pertinent land, and as a result, its ownership is lost. As seen below, it shall not be applicable to the instant case where the State already acquired the ownership of the relevant land at the time of incorporation into a river area, as seen below.

① According to the above facts, the prescription of possession of the instant land was completed on December 31, 1954 by the Republic of Korea’s peaceful and public performance from 1934 to 20 years. Meanwhile, under Article 162 of the Medical Service Act (amended by Act No. 471 of Feb. 22, 1958, which was in force on January 1, 1960, applied to civil prior to the enforcement of the Civil Act, which was in force on January 1, 1960; hereinafter the same shall apply), a person who occupied another’s property in peace and public performance for twenty (20) years. Even if the Republic of Korea did not complete the registration following the completion of the prescription of possession, the said person acquired ownership of the instant land immediately after the completion of the grace period on December 31, 1954, and Article 10 of the Addenda of the Civil Act, which was effective on the date of enforcement of the Civil Act, 163 years prior to the enforcement of the Civil Act.

② Article 4 of the former River Act (amended by Act No. 892 of Dec. 30, 1961 and wholly amended by Act No. 2292 of Jan. 19, 1971) which was enforced on June 1, 1964 regarding the instant land was determined and publicly announced as river area, and Article 4 of the former River Act (amended by Act No. 892 of Dec. 30, 1961) provides that “river shall be State-owned.” The Republic of Korea is merely a State-owned river area for the instant land, which had already been included in the river area. Meanwhile, since a river is a State-owned river area, the term of validity of the acquisition of real rights due to the completion of the prescription under the Medical Procedure Act as to the instant land already incorporated into a river area under the State-owned state is lost by the Republic of Korea, and the former owner’s prior ownership is not recovered.

③ If so, the Plaintiffs’ claim based on the premise that the Plaintiffs lost their ownership and acquired the right to claim compensation for loss on the same day when they owned the instant land at the time of June 1, 1964, only due to the determination and public notice of the river area for the instant land on the same day.

D. Therefore, even if there is a misapprehension of the legal principles as seen earlier, the lower court’s conclusion that dismissed the Plaintiffs’ claim for damages is justifiable, and the lower court’s error did not affect the conclusion of the judgment, and therefore, the grounds of appeal are without merit.

3. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Park Sang-ok (Presiding Justice)