[1] In a case where possession of public property is commenced without acquiring a right to registration or enrollment, whether it constitutes "the ground for exception to the collection of compensation" under the proviso of Article 87 (1) 1 of the Local Finance Act (negative)

[2] Whether the defect of administrative disposition against the good faith principle is serious and clear (negative)

[1] The reason for exception to the collection of compensation under Article 87 (1) 1 of the Local Finance Act refers to the case where a person registered or recorded in the registry or public record of a person other than a local government is a concealed public property and belongs to the local government, and the right to such property is acquired in good faith after paying a reasonable price to believe that the person holding the registration or record is a legitimate owner, and it is found that the property is a public property after acquiring it in good faith. The case does not constitute the case where the possession of the public property

[2] Even if an administrative disposition is contrary to the good faith principle, it cannot be deemed that the defect was serious and clear as a legitimate act.

[1] Article 87 (1) 1 of the Local Finance Act / [2] Article 4 (1) of the Administrative Procedures Act, Article 1 of the Administrative Litigation Act / [General]

[2] Supreme Court Decision 90Nu7449 delivered on January 29, 1991 (Gong1991, 895)

Plaintiff 1 and one other

Seocho-gu Seoul Metropolitan Government Head of Government

Seoul High Court Decision 2001Nu9341 delivered on January 15, 2002

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

1. Whether the proviso of Article 87(1)1 of the Local Finance Act is applied

A. Article 87 (1) of the Local Finance Act (hereinafter referred to as the "Act") provides that a person who occupies, uses, or benefits from a public property without obtaining permission for lending, using, or benefiting from a public property under the Act or other Acts shall collect rent or indemnity from, the property under the conditions as prescribed by the Presidential Decree: Provided, That in cases falling under any of the following subparagraphs, no indemnity shall be collected; however, in cases where a person who has acquired a right by paying a reasonable price in reliance on the name of a person on a registry or other public record as a legitimate owner is proved to be a public property and belongs to the local government after the acquisition of the property. The reason for exception to the collection of indemnity under subparagraph 1 of the above refers to cases where the property is concealed in the name of a person other than the local government in the registry or public record and is proved to be a public property after the acquisition of the right in good faith after paying a reasonable price to believe that the person in title on the registry or public record is a legitimate owner. This does not constitute cases where the right on the registration or public property commences

B. The court below duly acknowledged the facts as stated in its holding, and rejected the plaintiffs' assertion that the proviso of Article 87 (1) 1 of the Act should apply to the plaintiffs' assertion that the plaintiffs shall not be deemed to have acquired the land of Article 87 (1) 1 of the Act, unless there are special circumstances, even if the plaintiffs misperiated that the public property, which is part of the third land of this case where the above fence was installed, was purchased by themselves as to the land of this case, regardless of actual boundary, such as the fence, unless there are special circumstances, since the plaintiffs misperiated that the public property of this case, which is part of the third land at the boundary of the fence, was purchased by the plaintiffs due to unauthorized occupation and use of the third land which was subject to the disposition of this case.

In light of the above legal principles and records, the above judgment of the court below is justified in its purport that the plaintiffs cannot be recognized as acquiring each relevant unauthorized occupation portion which was registered or recorded in the name of a person other than a local government from the registered holder. It is not erroneous in the misapprehension of legal principles as to the exception of collection of indemnity, as otherwise alleged in the ground of appeal.

2. As to whether the good faith principle is violated

Even if an administrative disposition is contrary to the good faith principle, appearance cannot be deemed as a lawful act, and the defect is serious and clear (see Supreme Court Decision 90Nu7449 delivered on January 29, 191).

The court below is just in light of the above legal principles, and there is no error in the misapprehension of legal principles as to the principle of administrative good faith, contrary to what is alleged in the ground of appeal.

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

Justices Kim Ji-dam (Presiding Justice)