Where the conclusion of a State property loan contract or the payment of occupation fees after the completion of acquisition by prescription can be deemed as the expression of intent to waive prescription benefits.

The fact that the State and the State and the State have concluded a loan agreement and paid the loan fee alone after the completion of the acquisition by prescription is difficult to deem that the State made an active declaration of intent to waive the benefits of the completion of the acquisition by prescription. However, if such loan agreement was concluded over several occasions without any defect, or if it was not simply the conclusion of the loan agreement and the payment was made under the pretext of compensation, it would be reasonable to deem that such loan agreement or the payment of compensation was made by actively expressing the State’s ownership and to waive the benefits of the completion of the acquisition by prescription.

Articles 245(1) and 184 of the Civil Act

Supreme Court Decision 92Da46097 delivered on December 22, 1992 (Gong1993Sang, 588) 93Da2130 delivered on August 27, 1993 (Gong1993Ha, 2627) 93Da3013 delivered on November 26, 1993 (Gong1994Sang, 196) 93Da4918 delivered on September 9, 1994 (Gong194Ha, 2601) 94Da35398 delivered on October 25, 1994 (Gong194Ha, 3107)

[Judgment of the court below]

Korea

Suwon District Court Decision 94Na1156 delivered on May 25, 1994

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The fact that the possession of state property and the completion of the acquisition by prescription, concluded a loan agreement with the State and paid the loan shall not be deemed to have made an active declaration of intent to waive the benefits of the completion of the acquisition by prescription (see, e.g., Supreme Court Decisions 92Da46097, Dec. 22, 1992; 93Da30013, Nov. 26, 1993; 93Da30013, Nov. 26, 1993; 93Da30013, Nov. 26, 1993). If such loan agreement was concluded several times without any defect, or if it was made to pay indemnity under the pretext of the contract, it shall be deemed that the conclusion of such loan agreement or the payment of indemnity has made an active declaration of intent to recognize the ownership of the State and waive the benefits of the completion of the acquisition by prescription (see, e.g., Supreme Court Decisions 93Da2130, Aug. 27, 1993>

2. According to the reasoning of the judgment below, the court below acknowledged the fact that the deceased non-party 1 occupied the real estate of this case as a state-owned river site from August 10, 1959 to the original river site, and the plaintiff, as the head of South Korea, continuously occupied and cultivated the real estate of this case on January 9, 1982. The plaintiff applied for permission to occupy and use the real estate of this case on March 27, 1989, and paid 362,560 won compensation for unauthorized occupation and use from March 27, 1986 to December 31, 193. The court below rejected the plaintiff's claim for the transfer registration of the acquisition of the real estate of this case for the reason that the period of acquisition of the real estate of this case expired by the plaintiff's expression of intention to occupy and use the real estate of this case from August 10, 1959.

3. The above determination by the court below is just and acceptable, and there is no error of law by misunderstanding the legal principles on the waiver of the prescription interest, which affected the conclusion of the judgment. There is no ground for argument.

4. Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)