Effect of the acquisition or resale of State property under the name of another person by an employee engaged in the affairs concerning State property shall be null and void)

Article 7 (A) of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976) provides that in order to promote fairness in the affairs of disposal of State property, employees engaged in the relevant affairs shall strictly prohibit them by pointing out the most conspicuous act that may be suspected of being illegal, and that such act should be invalidated as to the judicial effect of the act in violation of the prohibition. In full view of the legislative intent of Article 1 (1) of the same Act, the act of acquiring State property in the name of another person shall be null and void as an evasion of law to avoid the application of the provisions of the same Act, which are mandatory law, and furthermore, unless the same Act does not provide for a provision that restricts the other party who may assert the invalidation in order to protect transaction safety, the act of acquiring State property by a third party in violation of the said provision shall also be null and void as a matter of principle.

Article 7 of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976); Article 14 of the State Property Act; Article 105 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Jeon-soo et al., Counsel for plaintiff-appellant)

Man-man et al. and five others

Defendant 1 and two others (Attorney O Byung-jin, Counsel for the defendant-appellant)

Gwangju District Court Decision 91Na2089 delivered on July 21, 1994

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

The grounds of appeal by the attorney are examined.

1. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the court below determined that the land prior to the division was purchased from the State on February 15, 1918 (which appears to be a clerical error in the court below on March 5, 1918) based on its evidence, and that the land prior to the division was purchased from the State on July 16, 1937, and was registered as a transfer of ownership by Nonparty 1, who is the representative of the plaintiffs under the former Rules of the Forestry Register (Ordinance No. 113 of the Ministry of Government Administration and Home Affairs No. 113 on August 23, 1920) and was registered as a purchase of the land prior to the division from the State on July 16, 1937 (the State on July 16, 1918). Further, the court below rejected the Defendants' assertion that the aforementioned facts were erroneous in the misapprehension of the legal principles as to the registration of ownership or the registration of ownership transfer based on the premise that Defendant 1 was not obligated to complete the registration of ownership transfer.

2. Regarding ground of appeal No. 3

Article 7 (A) of the former State Property Act (amended by Act No. 2950 of Dec. 31, 1976) provides that an employee engaged in the affairs related to state property shall strictly prohibit the employee from acquiring state property under the name of another person by pointing out the most conspicuous act that may be suspected of being illegal in order to promote fairness in the affairs related to the disposal of state property in accordance with the legislative intent of Article 1 of the same Act, and shall be null and void as an evasion of law in order to avoid the application of the same Act, which is a mandatory law, and further, unless the same Act does not provide for a provision that restricts the other party who can assert the invalidation for the purpose of protecting transaction safety, the invalidation may be asserted against anyone in principle. Thus, the act of acquiring state property acquired by a third party in violation of the above provision shall also be deemed null and void (see Supreme Court Decision 204Do2084 delivered on Oct. 21, 194).

According to the reasoning of the judgment below, the court below acknowledged, based on its evidence, that the non-party 1 was in full charge of the Mapo Tax Office's duty to take charge of the transfer of ownership under the name of the above defendant on July 8, 1974, and the non-party 1 was in full charge of the non-party 1's duty to take charge of the transfer of ownership under the name of the above defendant on September 23, 198, and completed the transfer of ownership under the above defendant's name on September 23, 198. According to the above purport, since the non-party 1 entered into a state-owned land agreement with the Republic of Korea on the real estate in the name of the above defendant 1 is null and void, the above transfer registration under the name of the defendant 1 is the registration invalidation, and each of the above transfer registration under the name of the defendant 1, which was made under the name of the defendant 1 in order to do so is also the registration invalidation of the cause. In light of the records and records, the court below's findings are justified.

3. Regarding ground of appeal No. 4

In comparison with the reasoning of the judgment of the court below, the defendants asserted that even if the above non-party 1 entered into a state-owned land contract with the Republic of Korea on July 7, 1992 with respect to the real estate in this case was null and void, the above contract was ratified by the Republic of Korea, and the court below did not make any judgment on this point as pointed out in the grounds of appeal. However, even if the legal act of invalidation is ratified, it does not take effect even if it is ratified by the parties, but it has the effect as a new legal act if the parties knew that the contract of this case is null and void, and there is no evidence to prove that the Republic of Korea confirmed it with the knowledge that the contract of this case is null and void. Accordingly, according to the records, the above argument by the defendants is rejected by the court below since it is evident that the above error of the court below did not affect the judgment, and thus, it cannot be said that the ground of appeal pointing this out has no merit.

4. Regarding ground of appeal No. 5

The plaintiffs' right to claim for the transfer registration of ownership against Korea is a new argument that does not exist at the original instance, and according to the records, the above Jinjin purchased the land before the division from the state (the state) and continued to occupy and manage it. Since it is recognized that the plaintiffs, the heir of the deceased, were possessed and managed after the above Jinjin died, the plaintiffs' right to claim the transfer registration of ownership of this case cannot be deemed to have expired by the statute of limitations. The argument in the grounds of appeal assigning this error is without merit.

5. 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.

Justices Park Jong-ho (Presiding Justice)