[1] Method of determining a river area in the new and old River Act, and whether land category of a river in the public record can be determined as a river area (negative)

[2] The case holding that since the management agency of local second-class river has jurisdiction over the management agency, the possession of the land in the river area cannot be recognized

[1] Article 12 of the former River Act (amended by Act No. 2292 of Jan. 19, 197), Article 2 (1) 2 of the former River Act (amended by Act No. 5893 of Feb. 8, 199), Article 2 (1) 2 of the River Act / [2] Article 11 of the former River Act (amended by Act No. 5893 of Feb. 8, 199), Articles 197 (1) and 245 (1) of the Civil Act

[1] Supreme Court Decision 72Nu153 delivered on December 10, 1974 (Gong1975, 8219), Supreme Court Decision 88Meu7030 delivered on February 27, 1990 (Gong1990, 741) Supreme Court Decision 91Da10046 delivered on June 28, 1991 (Gong1991, 2032), Supreme Court Decision 95Da18017 delivered on April 11, 1997 (Gong197Sang, 1401)

[Judgment of the court below]

Republic of Korea (Attorney Kim Byung-hee, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na9434 delivered on December 23, 2005

Of the part against the plaintiff in the judgment of the court below, the part concerning each land listed in the separate sheet 3, 4, and 5 of the judgment below is reversed, and this part of the case is remanded to the Seoul High

We examine the grounds of appeal.

1. In full view of the admitted evidence, the lower court acknowledged the following facts: (a) each of the lands listed in [Attachment 2 List 3, 4, and 5 (hereinafter “each of the instant lands”) was the land under the circumstances in the future; (b) the deceased’s temporary use was inherited to his descendants in succession in succession after the death of the deceased, through division consultation among coinheritors; and (c) each of the instant lands existed in a state of unregistered registration after the destruction of cadastral record due to war, etc. on June 25, 1995; and (d) on December 14, 1995, each of the preservation registrations in the Defendant’s name was completed; and (c) determined that “The Defendant occupied each of the instant lands with the intention of ownership ownership for twenty (20) years and acquired by prescription, and thus, the above preservation registration in the Defendant’s name is valid as a registration consistent with the substantive relationship; and (d) determined by the evidence of the lower judgment that each of the instant lands was not restored to a river, and thus, dismissed by the Defendant’s land category of the first 15th anniversary of May 19, 197.

2. However, the lower court’s determination that the Defendant acquired each of the instant land by prescription is difficult to accept in the following respect.

Under the former River Act (wholly amended by Act No. 2292 of January 19, 197) which was enacted on December 30, 1961 and enforced on January 1, 1962, river areas to which the provisions of this Act apply mutatis mutandis are only determined as river areas, which are subordinate areas of rivers, even if their names and sections are designated and publicly announced, and river areas, which are the border area of rivers, are separately determined and publicly announced by the management agency pursuant to Article 12 of the former River Act. The river areas, which were the border area of a river, were specialized areas by Act No. 2292 of January 19, 197, which were amended on July 19, 199, and were enforced on July 19, 199, the river areas of this case were also defined as the river areas of this case as the river areas of this case by the Supreme Court of Korea on February 8, 199.

In addition, the records clearly indicate that two rivers fall under the "applicable river" under the former River Act and the "local second-class local river" under the current River Act before the amendment by Act No. 5893 of Feb. 8, 1999. Since the management agency of the river to which this case applies mutatis mutandis or the local second-class river is not the defendant but the Governor of Gangwon-do, it cannot be deemed that the defendant occupied each of the land of this case only on the ground that each land of this case is the river area of two thousand river areas, and the evidence cited by the court below alone cannot be deemed that the defendant entrusted the management of two thousands to the head of

On the other hand, even if the Defendant occupied each of the instant lands as a river to which this case’s land was applied mutatis mutandis or a two-class river, a two-class river or a two-class river, the possession of each of the instant lands as a river area to which this case’s land was applied mutatis mutandis or a two-class river’s river area to which this case’s land was owned by the nature of the possessory right (see Supreme Court Decision 91Da8531, May 28, 191). Thus, it cannot be deemed that the Defendant occupied each

Thus, no one can be viewed as occupying each of the lands of this case with the intention to own them for 20 years or more, but the court below accepted the defendant's defense of prescriptive acquisition by deceiving that the defendant occupied each of the lands of this case as the intention to own them for 20 years or more. The court below erred by misapprehending the rules of evidence or by misapprehending the legal principles on the river area of the quasi-river or the local second-class river and its possession, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

3. Therefore, the part of the judgment of the court below against the plaintiff concerning each of the land of this case shall be reversed, and this part of the case shall be 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 Lee Hong-hoon (Presiding Justice)