[1] In a case where the acquisition by consultation under the Public Compensation for Loss and Compensation Act was made from an unentitled person, whether the genuine right holder loses his/her right (negative)

[2] The effect and method of ratification of the right holder's act of disposal by the unentitled person

[1] The acquisition by consultation under the Public Land Expropriation Act constitutes a sale under the private law, unlike expropriation under the Land Expropriation Act, and its effect is limited to the parties, so even if the acquisition by consultation was made from an unentitled person, the genuine right holder shall not lose his/her right.

[2] In a case where an unentitled person disposes of another person’s right in his/her own name or as his/her own right, the right holder may acknowledge the act of disposal by ratification on the subsequent date. Barring special circumstances, the act of disposal becomes effective to the right holder himself/herself in light of the principle of private autonomy. In such a case, ratification may be possible not only explicitly but also implicitly, and such declaration of intent may only be made by an unauthorized agent or the other party.

[1] Article 2 subparag. 4 of the Act on the Compensation for Public Loss, Article 186 of the Civil Act / [2] Articles 130 and 133 of the Civil Act

[1] Supreme Court Decision 94Da25209 delivered on December 13, 1994 (Gong1995Sang, 480), Supreme Court Decision 98Da2242, 2259 delivered on May 22, 1998 (Gong1998Ha, 1716), Supreme Court Decision 98Da48866 delivered on March 23, 1999 (Gong199Sang, 735), Supreme Court Decision 98Da47245 delivered on November 26, 199 (Gong200Sang, 29) / [2] Supreme Court Decision 79Da2151 delivered on November 13, 198 (Gong1981, 13577), Supreme Court Decision 208Da29889 delivered on August 28, 198 (Gong1982, May 29, 198)

Plaintiff (Law Firm Roice, Attorneys Cho Jae-moo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Seoul High Court Decision 2000Na61376 delivered on June 21, 200

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

1. Defendant 2 did not submit a statement of grounds for appeal within a lawful period, and the petition of appeal does not contain any information in the grounds for appeal.

2. As to Defendant 1’s appeal

A. Summary of the judgment of the court below

The court below determined as follows: on February 11, 1997, the Busan Metropolitan City Dongdong-gu, Busan Metropolitan City ( Address 1 omitted) paid a sum of KRW 323,470,00 to the defendant as compensation for damages for the above forest when acquiring through consultation from the defendant 1 (hereinafter referred to as the "the defendant"), and on February 26, 197, the part ( Address 2 omitted) exceeding 19/25 of the defendant's legal share of inheritance (6/25 shares) out of the ownership transfer registration completed under the name of the defendant on February 26, 197, over KRW 323,470,00 as compensation for losses for the above forest; and on February 26, 197, the court below held that the defendant was liable to return the above amount to the plaintiff as compensation for unjust enrichment under the above name of the defendant 6/25,77,80,300 won among the compensation for losses arising from the forest of this case which was received by the defendant from the Busan Metropolitan City.

In addition, if 6/25 shares of the defendant's transfer registration of ownership in the forest of this case are null and void, the transfer registration of ownership in relation to the above shares shall also be deemed null and void. Thus, since the Busan Metropolitan City Dong-gu shall not be deemed to have lost the plaintiff's ownership in relation to the above shares, as long as the defendant's assertion that there was no reason to claim the return of unjust enrichment, which is premised on the plaintiff's loss, was disposed of to a third party and the plaintiff made it considerably difficult for the plaintiff to seek the transfer of shares against the defendant, the court below cannot be deemed to have caused no legal loss solely on the ground that there is a room to seek the restoration of shares in relation to the plaintiff's claim. Meanwhile, in light of the fact that the defendant's claim for the cancellation of the transfer registration of ownership in relation to the forest of this case against the Busan Metropolitan City Dong-gu, Busan Metropolitan City's forest of this case against the plaintiff's claim for the return of unjust enrichment of this case, it shall not be accepted in light of the principle of trust and good faith.

B. Ground of appeal No. 1

According to the facts acknowledged by the court below, even if the 6/25 shares of the forest of this case was acquired by agreement from the defendant who was an unentitled person, the Dongdong-gu Busan Metropolitan City did not lose its ownership due to the invalidity of the cause, as alleged in the grounds of appeal (Along with the record, the acquisition of the forest of this case by agreement from the defendant on February 11, 1997 by Dongdong-gu Busan Metropolitan City is deemed to be under the Public Compensation of Loss and Compensation for Losses, and such acquisition by agreement constitutes a sale under private law, unlike expropriation under the Land Expropriation Act, and its effect is limited to the parties. It is so decided as per Disposition by the Supreme Court Decisions 94Da25209 delivered on December 13, 1994; 98Da47245 delivered on November 26, 1999, etc.).

However, in a case where an unentitled person disposes of another person’s right in his/her own name or as his/her own right, the right holder may approve the act of disposal by ratification. In such a case, barring any special circumstance, the effect of the act of disposal is natural in light of the principle of private autonomy (see, e.g., Supreme Court Decisions 79Da2151, Jan. 13, 1981; 87Meu2238, Oct. 11, 198). In such a case, the ratification can be made explicitly and implicitly, and such declaration of intent may be made only by an unauthorized agent or the other party.

According to the records, it is evident that the plaintiff sought the return of the amount equivalent to the plaintiff's share out of the compensation for losses for the forest of this case received by the defendant among the forest of this case under the premise that the acquisition by agreement with the plaintiff on the plaintiff's share in the forest of this case is valid. Thus, it is reasonable to deem that the plaintiff implicitly ratified the above disposal act by the defendant, who is an unentitled person, and therefore, the Busan Metropolitan City Dongdong-gu has lawfully acquired the ownership of the plaintiff's share in the forest of this case. In addition, in the case where the right holder confirmed the disposal act by the unentitled person, it is reasonable to view that the right holder can seek the return of the profit gained by the unentitled person against the unentitled person. Thus, the defendant is liable to return the amount equivalent to

Therefore, the judgment of the court below that held that the Plaintiff, the owner of the ownership of the Busan Metropolitan City, could seek the recovery of his share legally remains, shall be deemed to have erred by misapprehending the legal principles on the ratification of an act of disposal by an unentitled person and the legal principles on unjust enrichment. However, the conclusion of the court below that accepted the Plaintiff’s claim for the restitution of unjust enrichment in this case against the Defendant is justifiable, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on unjust enrichment. Meanwhile, the precedents cited in the grounds of appeal are different cases or on the premise of expropriation under the Land Expropriation Act that cannot be applied to this case acquired through

C. Regarding ground of appeal No. 2

As seen earlier, insofar as the Plaintiff is deemed able to seek a return of unjust enrichment equivalent to the compensation for losses against the Defendant, it is unnecessary to further determine the grounds of appeal as to the propriety of the lower judgment’s determination, unless the Defendant’s refusal of return of unjust enrichment is permissible in light of the good faith principle.

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)