(Cheongju)The revocation of the disposition of imposing indemnity

A Social Welfare Foundation

Law Firm Mai (Law Firm Domin, Counsel for defendant-appellant)

Attorney Go Young-young

Heads of the Cheongbuk-do Forest Environment Research Institute

Cheongju District Court Decision 2016Guhap10270 Decided August 10, 2017

July 18, 2018

October 31, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The disposition imposing indemnity against the Plaintiff on November 19, 2015 shall be revoked.

1. Quotation of the first instance judgment

The reasoning of this court's judgment is as follows, except for adding "2. Additional Judgment" to the part claimed by the plaintiff in this court, and therefore, it is identical to the reasoning of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Additional determination

A. The plaintiff's assertion

1) Article 33(1) of the former Cadastral Act (amended by Act No. 9774 of Jun. 9, 2009) set the same section, middle section, and Western datum as the datum for the coordinate used for a cadastral survey. However, Article 6(1)2 of the Act on the Establishment, Management, etc. of spatial Information newly set the starting datum for the Republic of Korea as the datum for the survey. Although the boundary of land was affected by such change, the instant disposition based on an excessive survey is unlawful.

2) Article 81(1) proviso 1 of the Public Property Act provides that “Where the property of a person (including his/her heir and his/her general successor) who has paid a reasonable price for the trust of the nominal owner on the registry or other public record as a legitimate owner is proved to be public property or goods and reverted to a local government after the acquisition of the property, no indemnity shall be collected.” Thus, the purport of the proviso is that the Plaintiff, the owner of the instant land, who is the owner of the instant land, due to a mistake in the defective cadastral record and management of survey control points,

B. Determination

1) Article 5 (1) 4 of the former Survey Act (amended by Act No. 9774 of Jun. 9, 2009) provides the starting point of the current spatial data survey as well as Article 6 (1) 2 of the Act on the Establishment, Management, etc. of Spatial Data, and thus, the starting point of the Republic of Korea is not changed to the starting datum of the Republic of Korea as alleged by the Plaintiff. In addition, in this case, as at the request of the Defendant on April 23, 2015, the Korea Land Information Corporation cannot find a base point similar to the surrounding point at the time of registration on the basis of the starting point at the time of registration or the partition survey point at the time of registration, and it is confirmed that the Plaintiff occupies the part of the land in this case based on the cadastral triangulation point located outside the above land, and the Korea Land Corporation’s appraisal information at the first instance court also cannot affect the boundary restoration of the land in this case based on the aforementioned cadastral triangulation point as alleged by the Plaintiff.

2) The reason for exception to the collection of indemnity refers to the case where the property, which is a public property registered or concealed in the name of a person other than a local government, belongs to a local government, and is found to be a public property after paying a reasonable price in good faith and acquiring the title holder of the registration in the name of a legitimate owner. It does not constitute the case where the Plaintiff simply misleads the Plaintiff that the property is not a public property and begins possession without acquiring the right to registration or enrollment (see, e.g., Supreme Court Decision 2002Du1465, Apr. 26, 2002). The Plaintiff did not complete the registration of the occupied portion other than the instant land. In addition, although the occupied portion is included in the boundary of the instant land owned by the Plaintiff, it is difficult to deem that the occupied portion was not included due to the error in the cadastral record and the management control point by the competent cadastral authority alleged by the Plaintiff, and thus, it is difficult to accept this part of the Plaintiff’s allegation that this disposition in this case is inappropriate.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges territorial jurisdiction of the presiding judge

Judges senior promotion

Judges Oather