(영문) 대법원 2014.10.15.선고 2012다100395 판결

According to the reasoning of the judgment below and the records, inasmuch as E, the Plaintiff’s fleet, is presumed to have become final and conclusive upon the assessment of the land in this case, the presumption power of the preservation registration in this case completed in the name of the Defendant as to the land in this case, and the Defendant fails to prove that the preservation registration in this case conforms to the substantive legal relationship. As such, the completion of the preservation registration in this case as to the land in this case is to complete the preservation registration in the name of the Defendant without any legal basis as to the land

Therefore, the judgment of the court below that the act of completing the preservation registration of this case was unlawful is just, and there is no error in the grounds of appeal.

2. As to the ground of appeal on intention or negligence

A. A public official in charge of entrusting preservation registration on the ground that a real estate was owned by the State in accordance with a statute has a duty of care to verify whether there exists any cause of nationalization as prescribed by a statute with respect to real estate subject to registration. However, even if the cause of nationalization, which serves as the basis of preservation registration, is not recognized as a result, and thus the act of registration on the real estate was unlawful, that alone cannot be deemed as a negligence by the public official in charge, and if an average public official in charge of the same duty was paid with ordinary attention that there is no cause of nationalization as prescribed by a statute, the negligence may be recognized when the preservation registration is completed without excessive attention, and the burden of proof is the Plaintiff seeking compensation for damages

B. According to the reasoning of the judgment below, the court below found that the defendant violated the duty of care to clarify the existence of the owner before the preservation registration of this case, on the grounds that ① the Plaintiff’s prior to the preservation registration of this case was stated as the owner in the forest survey report on the land of this case, and the land of this case was not indicated in the forest survey report on the land of this case; ② even if the land of this case was nationalized into real estate without real property under the Civil Act, the forest survey report on the land of this case was indicated as the owner of the land of this case; ② the defendant should have confirmed whether E is the owner of the land of this case at the time of the preservation registration of this case, whether he is the heir or successor, and whether there was no heir or successor. Furthermore, the court below determined that the defendant’s assertion that there was no reason for the completion of the preservation registration of this case on the ground that Japan was stated as the owner, and that there was no reason for the completion of the preservation registration on the land of this case on the old forest register of this case.

C. However, the lower court’s determination is difficult to accept in light of the aforementioned legal principles and the following circumstances.

(1) The legal principles presumed to have been established only through Supreme Court en banc Decision 84Meu1773 Decided June 10, 1986, which presumed that a person entered in the Land Survey Book as a landowner was the land owner and the circumstance was finalized. In determining the negligence with respect to the act of preservation registration of this case done prior to the above en banc Decision, the above legal principles established thereafter cannot be applied as they are. In particular, the Supreme Court Decision 72Da499 Decided May 31, 1972, which held that even if it was entered in the Land Survey Book as the land owner at the time of the preservation registration of this case, it is difficult to determine the negligence by a public official in charge of the preservation registration of this case on the premise that the Plaintiff’s preference stated in the Forest Survey Book as the owner of this case is presumed to be the land owner of this case.

(2) In addition, while the old cadastral book concerning the land of this case was restored without any legal basis before the amendment of the Cadastral Act on December 31, 1975, the legal doctrine denying the presumption of right to the entry of the owner in the original book arbitrarily restored shall be deemed to have been established after June 26, 1974, at least since the date of preservation registration, it cannot be determined the negligence of the public official in charge of preservation registration of this case under the premise of the legal doctrine. In other words, the proviso of Article 10 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8110 of May 7, 1976) provides that "the matters concerning the owner shall not be restored and registered without any legal basis," Article 6 of the Addenda of the same Enforcement Decree provides that "the public official in charge of the preservation of the original cadastral book of this case shall be presumed to have been arbitrarily recorded in the original cadastral record of this case on the ground that the owner was not restored and registered (including where the competent authority arbitrarily indicated the ownership of this case as reference material).

(3) In addition, although the land of this case is not entered in the forest land ledger, it is reasonable to view that it is the forest land, which is entered as the property devolving on the forest land ledger, as Japan’s ownership, and against the contrary, it is not reasonable to readily conclude that the forest land not entered in the forest land ledger which is vested in the forest land ledger is not a Japanese owner’s ownership (see Supreme Court Decision 96Da32812, Nov. 15, 196). Accordingly, the mere fact that the land of this case is not entered in the forest land ledger to which it

It is insufficient to conclude that a public official could have known the fact that he/she may not be a Japanese person in the old forest register of the land in this case, and there is no other evidence to acknowledge this even after examining the record.

D. Therefore, the circumstances cited by the lower court as the ground for recognizing negligence and the evidence presented by the lower court alone alone are insufficient to prove that the ground for nationalization of the instant land does not exist if an average public official in charge of the same business had paid due attention to the existence of the ground for nationalization. Nevertheless, the lower court determined that the public official in charge of the preservation registration of this case was negligent for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on negligence in the state liability for damages, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.