When an urban planning (road facilities) decision is rendered, whether the commencement of occupation as a road management authority can be deemed to exist.

The form of occupation of a road by the State or a local government can be divided into occupation as a road management agency and occupation as a de facto controller. Thus, if the existing road is in fact a public announcement of approval of routes under the Road Act, a road zone is determined, or a road is constructed as a result of the implementation of an urban planning project under the Urban Planning Act, it can be recognized that occupation as a road management agency has commenced from that time. Here, the existing de facto road refers to the time when a road zone is determined under the Road Act. Thus, it does not include the time when an urban planning (road facilities) is determined under the Urban Planning Act.

Articles 197 and 245(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

[Plaintiff-Counterclaim Defendant] Plaintiff (Attorney Lee Hong-chul, Counsel for plaintiff-appellant)

Gwangju Metropolitan City Dong-gu

Gwangju High Court Decision 94Na305, 3062 decided Oct. 12, 1994

The judgment below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined that the road of this case was originally owned by Nonparty 1, who is the Plaintiff’s father-gu, Gwangju-dong, Gwangju-gu, ( Address omitted), and that Nonparty 1 died on April 4, 1946, and Nonparty 2, who is the head of South and Australia inheritor, succeeded to the road of this case solely. The above Nonparty 2 died on June 29, 1981 and died on the part of Nonparty 3, the head of South and North Korea, and Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7, but the above co-inheritors, upon the agreement on division of inherited property among the above inheritors, completed the registration of transfer of ownership in the name of the Plaintiff, but the Defendant, around March 20, 1923, changed the category of the road of this case to the site planned to expand the road of this case, and that the Defendant provided the road of this case to the road of this case, which had been approved by the road management authority as 3828 meters of construction volume of the road of this case.

2. However, the possession of a road by the State or a local government can be divided into possession and possession as a de facto controlling body of the road management authority. Thus, it can be recognized that possession as a road management authority starting from the time of the public announcement of recognition of routes under the Road Act and the determination of a road zone under the Urban Planning Act, or when the construction of a road becomes possible by the implementation of an urban planning project under the Urban Planning Act. Even if there is no act of construction of a road under the Road Act, if the State or a local government actually performs the reconstruction or maintenance of a road, such as expansion of a road, packing of a road, or installation of a sewerage system, and if it is public for notarial traffic, it shall be recognized that the road is actually under the de facto control of the State or a local government, and it shall be recognized that the occupation as a de facto controlling body has been commenced (see Supreme Court Decision 92Da19804, Aug. 24, 193). The term "when a road zone under the existing Road Act has been determined by the road management authority under the Road Act.

However, according to Gap evidence No. 7, which was rejected by the court below, the decision No. 385, which was announced by the construction division on June 25, 1968, is not a decision of the road zone by the road management authority under the Road Act, but an urban planning decision by the Urban Planning Act. (In addition, according to the above evidence No. 7, since the commencement date and completion date of road expansion works for the road in this case can be seen to be a fact that it cannot be confirmed as there is no preservation hole, it is not known that the defendant started possession as the de facto controlling body of the road in this case), from the time when the above construction division is determined and announced, it is erroneous in the misapprehension of legal principles as to the commencement of possession in the acquisition by prescription for the possession of the road in this case. Accordingly, the ground of appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)