The base time for determining whether the portion in excess of the upper limit of the distributed farmland is void automatically;

In principle, the determination of the validity of a distribution disposition for the portion in which the upper limit of the distributed farmland has exceeded shall be based on the time when the distribution of farmland takes effect, i.e., the time when the distribution disposition becomes final and conclusive, but where it is presumed that the distribution disposition has been duly made, it

Article 12 of the Farmland Reform Act

Supreme Court Decision 67Da564 Decided June 20, 1967

[Judgment of the court below]

Defendant 1 and one other, Defendant 1 et al., Counsel for the defendant-appellant and Kim Jong-hun, Counsel for defendant-appellant

Seoul High Court Decision 72Na725 delivered on March 23, 1973

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

(1) We examine the Defendants’ respective grounds of appeal Nos. 1 in each of the grounds of appeal of the attorney Park Jong-won and Kim Jong-chul (hereinafter the same shall apply).

According to the original judgment, the court below acknowledged that the defendant et al. and the non-party 1 et al. were their family members living together with defendant 1 at the time when the Farmland Reform Act was enforced, and that the above defendants were their own farmland as stated in Schedule 1 to 30 attached to the original judgment at 4,670, and that the farmland stated in Schedule 1 to 12 of this case, which was non-self-owned farmland, was owned by the plaintiff at the time, was distributed to the defendant 1; the farmland stated in Schedule 1 to 22 of this case was distributed to the defendant 2; the farmland stated in Schedule 1 to 17 of this case was also distributed to the defendant 3 of this case at the time of the enforcement of the Farmland Reform Act; since the above farmland was transferred to the defendant 1 and the non-party 1 et al., the above defendant's family members living together with the above defendant 3 of this case's family members living together with the above 9th of Sep. 30, 1961 to 198.

However, as a summary of each argument, Article 12 of the Farmland Reform Act provides that the total area of one farmer per farmland does not exceed three information shall be interpreted as compulsory provisions, and if the farmland distribution is made in violation of the above management area restriction provisions, the disposition shall be null and void. In the case of farmland distribution in excess of the above maximum limit, the validity of the farmland distribution shall be determined first on the basis of the effective date of the farmland distribution. With respect to the effective date of the farmland distribution, if there is no objection to the farmland committee with the lapse of the grace period stipulated in Article 32 of the Enforcement Decree of the Farmland Reform Act, the final and conclusive as the farmland distribution becomes effective, and there is no legal principle that the final and conclusive distribution disposition becomes null and void retroactively due to any cause that occurred thereafter. Thus, the court below's decision should be made first of this case's farmland and the remaining farmland distribution restriction period after the final and conclusive date of the above list 3 to 3 to 3 to 3 to 1 to 3 to 1 to 1 to 1 to 2010.

Therefore, in a case where farmland is distributed in excess of the limit (9,00 square meters), the first (in principle) decision shall be made as to the validity of the allocation of farmland, i.e., the time when the allocation of farmland becomes effective, i., at the time when the allocation of farmland becomes final and conclusive. However, as in this case, it is reasonable to view that the allocation of farmland in excess of the above limit is presumed to be a distribution disposition duly made by the presumption of the transfer of ownership in the name of the Defendants for the reason of the redemption of both the allocation of the first and third lists and that the allocation of farmland in excess of the above limit is presumed to be a distribution disposition made in accordance with the presumption of the transfer of ownership in the name of the Defendants for the reason of the redemption of all the above limit limit, and there is a counter-proof to the said portion (this case is a case where there is no possibility that the court below, even if having conducted any deliberation, is deemed to be illegal exceeding the above limit) in this case.

In this case, the legal composition of the previous excess portion does not necessarily depend on whether the disposition of the distribution itself is null and void, but it is judged whether the act of acquiring ownership of the excess portion (the act of repayment, the act of cause for registration) itself is null and void due to the violation of the Farmland Reform Act, which is a mandatory law.

However, in light of the reasoning of the judgment in the original judgment, although the distribution of farmland in this case was made by using the expression "it shall be null and void as a matter of course", its purport is clear that the above measures of the court below are null and void as stated above, and it is just in the above measures of the court below and there is no illegality in the theory of lawsuit.

(2) As to the Defendant’s ground of appeal No. 3 by Kim Jong-chul, Counsel for the defendant-appellant

In summary, the court below acknowledged the fact that the above list 2 was farmland owned by the defendants at the time of the enforcement of the Farmland Reform Act, based on the evidence of the original judgment, and recognized the facts that the land recorded in the above list 2 had been farmland owned by the defendants at the time of the enforcement of the Farmland Reform Act, and based on the statements of evidence Nos. 3 through 3, 8-2, 32-4, and 30 of the above list among the above land, the court below recognized the part of the land stated in the above list 3, 8, 15 and 15 of the above list as farmland land at the time, but it can be recognized that at the time, it was farmland as a site for the above 1, 3 and 15 of the above list without any judgment of each evidence, and recognized that there was a inconsistency between the above list 23-8 and 36-14 of the evidence No. 19 at the time of the original judgment and the plaintiff's statement No. 1, 196 of the above list and 16 of the reasons for pleading No.2816 of the plaintiff's.

Examining the above measures of the court below in light of the records, the court below seems to have recognized farmland nature of the land listed in the second list in respect of the value of evidence of the "farmland list", and such measures are just and there is a deviation from the judgment rejecting the dissenting evidence of the novel theory, but this case cannot be said to affect the judgment.

In addition, as to the overlapping calculation of the same land in the latter part of this point of this issue, the sum of the land in the theory is 139 square meters, which is obviously 9,378 square meters, and the sum of the parallel numbers in the table 2 and the parallel numbers in the table 3 in the table 3 in the original city, so even if there exists overlapping calculation, it is still 9,378 square meters-139 square meters-9,239 square meters in the original city, and if it exceeds the upper limit line 9,000 square meters, it cannot be said that there is no different effect on the original judgment. In addition, there is an attack by the original court on the ground of the fact that there is an attack by the development of the original court at the point of this issue, but it is determined that all the results of the record point are groundless.

(3) Each of the grounds of appeal No. 2 by the same attorney Lee Jong-won and Kim Jong-chul is examined.

All arguments are the theories that were followed by the misapprehension of the judgment of the court below with regard to the standard time for determining whether the so-called excess portion is void as a result of repayment. However, as the above party members explained earlier, the court below held that the distribution disposition itself as to all of the distributed farmland of this case was legitimate and conclusive in the same purport as the grounds for reversal and return of the Supreme Court of this case, and that the invalidity of the distribution itself cannot be permitted under the Farmland Reform Act, and that the completion of the repayment, which is the acquisition of ownership, cannot be permitted under the Farmland Reform Act. However, there is no reason why the court below erred by failing to examine and determine whether the self-owned farmland of this case or the distribution of the farmland of this case, which is still farmland as a result of the completion date of each repayment.

(4) As to the ground of appeal No. 3 by the same attorney Lee Dong-won

Article 7 of the Enforcement Decree of the Farmland Reform Act provides that the excess amount of three information should be purchased from the State for distribution of farmland if there are three or more informations at the time of the farmland reform, so that the excess amount of three information should be purchased from the State for distribution of farmland, at the option of the owner of farmland.

However, there is no room for the reason that if the farmland determined to be distributed exceeds three information, the excess portion should be considered as farmland, and the choice of the person who receives the distribution shall be applied.

Therefore, this issue is without merit, which is based on the premise that such option is against the Defendants, a receiver.

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.

Since it is impossible to sign as a business trip for the judge of the Supreme Court, he shall be dismissed by the judge of the Supreme Court.

Justices Kim Young-ju (Presiding Justice) Lee Young-young (Presiding Justice)