(영문) 서울행정법원 2018.10.23.선고 2017구단75517 판결

A. The Seoul Special Metropolitan City completed the registration of initial ownership as to the land of 1965**, 00-Gu 00-dong 00-dong ** - - 19 road 671 4m2 (hereinafter referred to as the "land of this case"), and 00-Gu Seoul Special Metropolitan City * * 1997 * * 1989 * * 1989 * the registration of initial ownership as to the land of this case * the registration of ownership transfer due to the succession to rights.

B. The Plaintiff completed the registration of transfer of ownership based on each trading date with respect to the building (hereinafter referred to as the “building in this case”) and the second floor building (hereinafter referred to as the “building in this case”) adjacent to the land in this case.* 00-Gu 00 Dong 0.* 9* 9-9m high 266.4m high ******* 10 large 10 large 11.9m (hereinafter referred to as “***** * ? ? ?).

C. The Defendant: (a) against the Plaintiff, the instant building part was affected by KRW 2,255,10 (from December 1, 2010 to November 30, 2015) on the ground that the Plaintiff, who is the owner of the instant building, occupied the instant land, and occupied the instant land without obtaining permission to occupy and use the road, beyond the boundary of each ten x-9,**** 1,3 square meters out of the instant land (hereinafter “the occupied part”); (b) on the ground that the Plaintiff, who is the owner of the instant building, occupied and used the instant land, which is a road without obtaining permission to occupy and use the road, KRW 2,255,100 (the imposition period from December 1, 201 to November 30, 2015).

D. The Plaintiff, who is dissatisfied with the previous disposition, filed an appeal seeking revocation of the previous disposition with the Seoul Administrative Court ***** on the grounds that the said court rendered a judgment revoking the previous disposition on the grounds that the previous disposition was unlawful, on the grounds that there was no evidence to support that the public announcement of the designation or recognition of routes under the Road Act was made with respect to the land of this case as well as the determination or public notification of road zones under the Urban Planning Act and the Urban Redevelopment Act were made, or that the land of this case was subject to the procedure under the Urban Planning Act or the Urban Redevelopment Act.

E. After October 16, 2017, the Defendant imposed an indemnity of KRW 783,700 (from August 1, 2012 to July 31, 2017) pursuant to Article 81 of the Public Property and Commodity Management Act (hereinafter “Public Property Act”) on the Plaintiff on the ground that the Plaintiff occupied the instant portion as the site of the instant building without permission (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 6-1, 2, Gap evidence Nos. 7, 8, 9, Eul evidence No. 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The occupied portion of this case is not administrative property and is subject to prescriptive acquisition. The plaintiff believed that the occupied portion of this case belongs to the site that the plaintiff purchased and acquired after purchase and acquisition of the building of this case and its land of this case ***************** the occupied portion of this case ** the date of commencement of the construction of this case ** the prescriptive acquisition for the occupied portion of this case * 20 years after the starting date of the construction of the road of this case ** the date of commencement of the construction of the road of this case 20 years. Thus, the disposition of this case on the premise that the plaintiff has occupied the road of this case without a legitimate title is unlawful.

2) The Plaintiff paid the price in trust in the name of the former owner of the instant building and its site, and acquired ownership, but was notified of the previous disposition, and became aware that the occupied part of the instant building was the Defendant’s ownership. Accordingly, the Plaintiff cannot collect indemnity from the Plaintiff pursuant to Article 81(1)1 of the Public Property Act.

3) Even if the obligation to pay indemnity is recognized to the Plaintiff, the Defendant also has the duty to return unjust gains equivalent to the royalty to the Plaintiff, as the Defendant occupies and uses the Plaintiff’s instant *** 6m2 in land 5.6m2 as a road without permission. Thus, the Defendant’s unilaterally imposes indemnity on the Plaintiff only without offsetting it or fulfilling its obligation is contrary to the good faith principle.

B. Determination

1) Whether the occupied part of this case is subject to prescriptive acquisition

A) Administrative property under the Public Property Act refers to a property owned by a local government and being constructed for the purpose of its direct use, public use, or property determined to be used by the local government for the purpose of its use, and the property that the local government has decided to preserve or preserve (see Article 5(2) of the Public Property Act). Of that, where an artificial property such as a road is designated under the Act and subordinate statutes or is determined to be used for public use by an administrative disposition, or where it is actually used as an administrative disposition, it can only be deemed an administrative property. In particular, when a road has the form of a road, and a road is determined and publicly announced as a road route under the Road Act or a road zone, or when a road is constructed through a vehicle under Section 1 of the Urban Planning Act or the Urban Redevelopment Act, it may not be deemed that it constitutes an administrative property (see Supreme Court Decision 9Da1693, Oct. 15, 2009). 16, the part of the land can not be deemed to fall under an objective administrative property (see Supreme Court Decision 2009Da1516, Apr. 16, 96, 20015).

B) In the instant case, according to the overall purport of the statements and arguments in the health belt, Gap evidence Nos. 5, Eul evidence Nos. 7 and 12, and the overall purport of video and pleadings, the instant land was determined as a Si Planning Facility (Road) in the Seoul Special Metropolitan City’s Notification No. 2007-4 on January 11, 2007, and the Defendant issued a public notice on the designation of a route for the instant land on November 10, 2016, but the occupied portion of the instant land was determined as at the time of construction of the instant building * * 1963 at the time of construction of the instant building.

It can be recognized that the occupied part of this case has been used as the site of the building. According to the above facts, it is reasonable to view that the occupied part of this case is a general property subject to prescriptive acquisition, since there is no data to regard that the occupied part of this case has been in the form of a road or a road has not been constructed, and that the occupied part of this case has been actually used as a new road *.*, it is reasonable to view that the occupied part of this case constitutes a general property subject to prescriptive acquisition. Since the occupied part of this case is separate from other parts of the land of this case and used as the site of this case, there has been an objective proof sufficient to recognize that it belongs to the plaintiff's possession. Thus, the prescriptive acquisition for the occupied part of the land of this case can be recognized.

2) Whether the period of prescription of possession has expired

A) The fact that the building of this case used the part of this case as a site for the building since its new construction around around 1963**. The fact that the building of this case was used as the site for the building is recognized as above, and the plaintiff added the whole purport of pleading to the entries and images of Gap evidence 5, Gap evidence 12-1, 12-1, 3, 12-1, 198.*** the building of this case and its site of this case******* -9, **** the part of this case that purchased and acquired each land of this case * * * the part of this case, and the part of this case were delivered and occupied together. According to the above facts of recognition, it is presumed that the plaintiff has occupied the part of this case as the intention of possession since it was presumed that it had been jointly and openly occupied as the above part of this case since * the date of possession of this case last 208, 200.

B) As to this, the Defendant asserts to the purport that the Plaintiff’s possession of the part in possession of the instant building constitutes the possession of a third party, since the Plaintiff entered into a sales contract after confirming the ownership relationship and size by the certified copy of the registry or cadastral record, etc. before entering into the sales contract. As such, the Plaintiff could have known the fact that part of the building at the time of the purchase of the instant building was invaded on the instant land. The Plaintiff’s possession of the part in possession of the instant building constitutes the possession of a third party, since the Plaintiff could sufficiently know such fact due to the characteristics of the shape that invaded the instant land.

In purchasing and acquiring a site together with a building on the ground, it is reasonable to view that the contracting party was aware of the ownership of the site, barring any special circumstance, where the size of the site subject to the sale exceeds considerably the size of the registered injury, and in such a case, the buyer believed that the boundary line with the neighboring land belongs to the purchase and acquisition site and occupied part of the adjoining land by mistake, and as long as he actually occupies a part of the adjoining land under the transfer of the above neighboring land, the possession of the adjoining land shall also be deemed to have been based on the intention of ownership. On the other hand, as long as the person who wants to purchase the real estate has confirmed the ownership and size of the adjoining land by the certified copy of the register or the cadastral record before entering into the ordinary sales contract, it shall be deemed that the contracting party knew of the fact, barring any special circumstance, such as where the seller agrees to acquire and transfer the ownership of the excess portion, the excess portion shall be deemed the sale of the simple right of occupation and use. Therefore, it shall be deemed that the possession constitutes the possession of the title.

However, in light of the following facts: (a) the area on the public register of the site of the instant building purchased by the Plaintiff is = 3m of square meters ( = 266 square meters + 11.9m; (b) the area of the site of the instant building that the Plaintiff actually transferred is 279m of 6m including the portion of the instant building ( = 3m3m of 278 + 1.3m of 3m of 278), and it cannot be deemed that the area of the transferred site exceeds considerably the area on the public register; and (c) the Plaintiff’s assertion that the portion of the site of the instant building included the portion of the instant building that was occupied, which was not subject to the sale at the time of the instant building, does not constitute the reversal of the Plaintiff’s assertion that the portion of the instant building was not subject to possession.

3) Sub-decisions

Ultimately, inasmuch as the Plaintiff completed the statute of limitations for the acquisition of possession regarding the part in possession of this case, the Plaintiff constitutes a person who has a legitimate source of authority to possess, use, or profit from the part in possession of this case, and thus, the instant disposition imposing indemnity against the Plaintiff is unlawful. Accordingly, the instant disposition should be revoked on the grounds that it is unlawful without further examining the remainder of the Plaintiff’s assertion.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.