A. Nature of the possession of the property devolvingd (=the possession of another owner)

(b) Article 2 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to Ownership and Article 5 of the Addenda of the Act on Special Measures for the Disposal of Property Belonging to Ownership, in cases of purchasing and occupying land

C. Whether applying Article 5(2) of the State Property Act to the miscellaneous property is in violation of the Constitution, and whether the Constitutional Court’s decision of unconstitutionality affects the legal principles on the nature of possession of the property devolving upon the State (negative)

A. In light of the contents of Articles 2(1), 3, 4, 22, 25, and 34 of the Act on the Disposal of Property Belonging to the State, promulgated on December 19, 1949, the possession of the property devolving upon the State shall be deemed as the possession of the property devolving upon the nature of the title.

B. According to Article 2 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to Jurisdiction (Act No. 1346 of May 29, 1963), and Article 5 of the Addenda, since Article 2 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to Jurisdiction provides that property devolving upon the purchase contract shall be State-owned free of charge by the end of December 1, 1964, property devolving upon the purchase and possession of land devolving upon the State shall become State-owned property from January 1, 1965. Therefore, in a case where the land devolving upon the purchase and possession of land devolving upon the State-owned property, the possession of the land shall be reverted to the State-owned property from January 1, 1965, and

C. Although the Constitutional Court decided that applying Article 5(2) of the State Property Act to the miscellaneous property that is not subject to prescriptive acquisition is in violation of the Constitution, there is no influence on the legal principle that the possession of the land belonging to the State under the Act on the Disposal of Property Belonging to the State constitutes the possession of the other State.

(a)(c)Article 245(a) of the Civil Code, Article 4 and Article 22(b) of the Act on Special Measures for the Disposal of Property Belonging to Jurisdiction (No. 1346 of May 29, 1963, effective) Article 2 Subparag. 1 of the Act on Special Measures for the Disposal of Property Belonging to Jurisdiction, Article 5(3) of the Addenda, Article 5(2) of the State Property Act (the Constitutional Court Order 89Hun-Ga97 dated May 13, 199)

A.B. Supreme Court Decision 88Da24622 delivered on January 12, 1990 (Gong1990, 451). Supreme Court Decision 70Da1686 delivered on September 29, 197 (No. 153) (Gong183 delivered on November 26, 1991), Supreme Court Decision 91Da24779 delivered on November 26, 1991 (Gong192, 289 delivered on September 27, 197), Supreme Court Decision 69Da1809 delivered on September 22, 1981 (No. 1981, 14376).

[Judgment of the court below]

Attorney Jung-gu, et al., Counsel for the defendant-appellant

Daegu High Court Decision 91Na2497 delivered on September 19, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to Articles 2(1), 3, 4, 22, 25, and 34 of the Act on the Disposal of Property Belonging to the State of the Republic of Korea enacted on December 19, 1949, all property devolving upon the Government of the Republic of Korea shall be leased or managed by the Government until it is designated as a State-owned or public property, or sold to a national or corporation, and the lessee, manager, or purchaser of the property devolving upon the State shall preserve the property with the care of a good manager and shall not sublease or dispose of the property without the Government’s approval until the ownership of the property is transferred to the State (see Supreme Court Decision 70Da1686, Sept. 29, 197; Supreme Court Decision 77Da1097, Apr. 11, 197; Supreme Court Decision 28426, Apr. 28, 199).

Meanwhile, according to Article 2 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to State (Act No. 1346 of May 29, 1963) and Article 5 of the Addenda, since Article 2 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to State shall be state-owned without compensation until the end of December 1964, the property devolving to State-owned property not sold until the same date shall become state-owned property from January 1, 1965 (see Supreme Court Decision 69Da1809 delivered on January 27, 197). Therefore, in case where the land which is vested to State-owned property is purchased and occupied, it shall be deemed that the possession of the land becomes state-owned property from January 1, 1965, and it is possible to proceed with the prescriptive acquisition from that date is the same as a lawsuit (see Supreme Court Decision 88Da24622 delivered on January 12, 190).

In addition, even though the Constitutional Court decided on May 13, 1991 that applying the provision of Article 5 (2) of the State Property Act to the miscellaneous property is not subject to the prescriptive acquisition is in violation of the Constitution, there is no complaint in light of the legal principles as seen above that the Plaintiff’s possession of the land of this case is the possession of the owner under the Act on the Disposal of Property Belonging to the State Property.

The court below's rejection of the plaintiff's letter of prescriptive acquisition in accordance with the above legal principles is just and without merit.

Therefore, the appeal is 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-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)