[1] Where part of public waters were actually reclaimed but the public waters were not discontinued, whether they have the nature as public waters in law (affirmative)

[2] Requirements for an administrative property to become an object of prescriptive acquisition and the validity of the State's disposition of sale of the administrative property (negative)

[3] Whether the State's conclusion of a contract for sale of administrative property can be deemed as a legitimate declaration of intent to abolish it for public use (negative)

[4] The case holding that it does not go against the principle of good faith to claim that the land is a state-owned administrative property not subject to prescriptive acquisition after the land was sold by the State as property devolving upon mistake and the price was paid in full, and the land was abolished in common

[1] Public waters are so-called natural public waters, which are directly offered for public use, and even if part of public waters were actually reclaimed, as long as the state does not abolish them as public waters, they still have the nature as public waters in law.

[2] The administrative property cannot be a subject of private transaction unless it is closed for public use, so it is not a subject of prescriptive acquisition, and even if it is sold any administrative property without knowledge by the administrative authority, it is void as a matter of course.

[3] The expression of intent for the abolition of public use cannot be deemed to have been made by the office of administration on the sole basis of the fact that the expression of intention for the abolition of public use is not only an express expression of intention, but also an implied expression of intention, but also an implied expression of intention, and that the administrative property is not provided for its original purpose, and it cannot be deemed that there was an expression of intent for the abolition of public use with an invalid sales contract

[4] The case reversing the judgment of the court below which recognized the prescriptive acquisition on the ground that the State's assertion that the land is a state-owned administrative property not subject to the prescriptive acquisition cannot be deemed to go against the good faith principle, even if the land became miscellaneous property due to the public abolition after 40 years have passed since the State sold the reclaimed land of public waters as property devolving upon mistake and received the payment for the purchase price in full, and 40

[1] Article 2 subparag. 1 of the Public Waters Reclamation Act, Articles 4(2)2 and 5(2) of the State Property Act / [2] Articles 245(1) and 563 of the Civil Act, Articles 4(2)2 and 5(2) of the State Property Act / [3] Articles 4(2)2 and 5(2) of the State Property Act, Article 563 of the Civil Act / [4] Articles 2 and 245(1) of the Civil Act, Articles 4(2)2 and 5(2) of the State Property Act

[1] [2] Supreme Court Decision 94Da50922 delivered on Nov. 14, 1995 (Gong1996Sang, 4) / [1/3] Supreme Court Decision 94Da42877 delivered on Nov. 14, 1995 (Gong1996Sang, 2) / [1] Supreme Court Decision 92Nu18528 delivered on Apr. 13, 1993 (Gong1993Sang, 1410), Supreme Court Decision 96Da3890 delivered on Mar. 22, 1996 (Gong196Sang, 1361) / [2/3] Supreme Court Decision 93Da520 delivered on Mar. 22, 1994 (Gong194, 194; 139Da54979 delivered on Apr. 25, 195) / [2] Supreme Court Decision 96Da397494 delivered on Apr. 196, 1997

Plaintiff 1 and one other

Korea

Gwangju District Court Decision 93Na3024 delivered on October 27, 1995

The judgment of the court below is reversed and the case is remanded to Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below

A. The above part of the land was buried without a license for 238m2 to 10m2. The above part of the land was owned by the non-party 1, the non-party 2, and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 3 and the non-party 1 and the non-party 2, the non-party 1 and the non-party 2, the non-party 1 and the non-party 37.

B. As to the Defendant’s assertion that the instant land is a non-licensed reclaimed land, not a property reverted to the Defendant, but a state-owned administrative property that the Defendant had registered and managed as a state-owned property on March 28, 1969, and thus, it is not subject to the acquisition by prescription. As long as a sales contract was established between the Defendant and the Black Fishery Association on the instant land, it is difficult to conclude that the instant land already sold was a state-owned administrative property not subject to the acquisition by prescription even if the Defendant set a new lot number on the instant land in the process of setting a parcel number on the non-licensed reclaimed land, and completed the registration of preservation of ownership in the Defendant’s name. Furthermore, even if the instant land became a state-owned property, it is difficult to conclude that the instant land already sold was a state-owned administrative property not subject to the acquisition by prescription. Even if the instant land became a state-owned property, more than 40 years have passed since the Defendant concluded a contract with the miscellaneous Fisheries Association and it was paid in full.

2. Public waters are so-called natural public waters and themselves are offered for public use (see Supreme Court Decision 67Da131, Apr. 25, 1967). Even if part of public waters were actually reclaimed, it still has the nature of public waters as long as the State does not abolish them as public waters (see, e.g., Supreme Court Decision 67Da131, Apr. 25, 1967; Supreme Court Decision 72Da841, Aug. 22, 197; 95Nu10327, Dec. 5, 195; etc.). Accordingly, if the land of this case was reclaimed without permission without permission as recognized by the court below, the land of this case is naturally state property, and if it is owned as public waters and the State does not abolish it.

In addition, since administrative property cannot be an object of judicial transactions unless it is closed for public use, it cannot be an object of acquisition by prescription (see, e.g., Supreme Court Decisions 93Da5620, Mar. 22, 1994; 92Da4973, Jul. 27, 1993; 92Da4973, Apr. 27, 1993); even if an administrative agency sells an administrative property that does not know of it, its sale is null and void as a matter of course (see, e.g., Supreme Court Decisions 67Da806, Jun. 27, 1967; 93Da42658, Apr. 28, 1995). An expression of intention of disuse for public use cannot be deemed legitimate declaration of intention as well as legitimate declaration of intention, but it cannot be deemed that there was a legitimate declaration of intention of disuse for public use with the administrative property that is not provided for its original purpose.

Therefore, as acknowledged by the court below, even though the defendant sold the land of this case to the property devolving upon mistake before the public closure of the land of this case, and the land of this case is not used for the original purpose as public waters, it cannot be deemed that the defendant expressed his intention to abolish the land of this case.

In addition, even if the Defendant, by mistake, made the land in this case as reverted property and received the payment therefor in full, and 40 years have passed since the conclusion of the non-contract, and thereafter the land in this case became miscellaneous property due to public abolition, it cannot be deemed that the Defendant’s assertion that the land in this case is a state-owned administrative property that is not subject to the acquisition by prescription is contrary to the good faith principle.

Nevertheless, the court below rejected the defendant's assertion that the land of this case was an administrative property provided for the original public use from different points of view, and there is an error of law by misunderstanding the nature of the public waters illegally reclaimed and the legal principles on the abolition of the public use of the administrative property, and the second point of appeal pointing this out is justified.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)