[1] The standard for determining whether a certain piece of land is "farmland" under the former part of Article 2 subparagraph 1 (a) of the Farmland Act, and whether it constitutes "farmland" under the Farmland Act where a land which was "farmland" under the Farmland Act is actually used for another purpose without permission, etc. for diversion of farmland and is actually used for another purpose (affirmative)

[2] In a case where farmland below 10,000 square meters acquired by inheritance is not used for one’s own agricultural management without justifiable grounds, whether the person is obligated to dispose of such farmland (negative)

[1] Whether certain land is "farmland" under the former part of Article 2 subparagraph 1 (a) of the Farmland Act shall be determined according to the actual phenomenon of the land regardless of the land category in the public record, but if the land which was "farmland" under the Farmland Act is actually used for another purpose and should be restored to the original state as farmland because it is unlawfully diverted without obtaining permission, etc. for diversion of farmland, if it is necessary to restore the land to the original state to the original state as farmland, it is merely

[2] In full view of the language, structure, history, legislative purport, etc. of Articles 6(1) and (2)4, 7(1), and 10(1)1 and 6 of the Farmland Act with respect to farmland not exceeding 10,00 square meters acquired by inheritance, Article 10(1)1 of the Farmland Act does not apply to farmland not being used for one’s own agricultural management without good cause as prescribed by the Presidential Decree, and thus, it cannot be deemed that there is a duty to dispose of farmland not exceeding 10,00 square meters.

[1] Article 2 subparagraph 1 (a) and Article 42 of the Farmland Act / [2] Article 6 (1), (2) 4, Article 7 (1), and Article 10 (1) 1 and 6 of the Farmland Act

[1] Supreme Court Decision 2018Du43095 Decided October 25, 2018 (Gong2018Ha, 2264)

Plaintiff (Law Firm Sejong, Attorneys Kim Jong-ok et al., Counsel for the plaintiff-appellant)

The head of Gangseo-gu Busan Metropolitan Government

Busan High Court Decision 2017Nu22565 decided October 11, 2017

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

The grounds of appeal are examined.

1. As to the second ground for appeal

Whether certain land is "farmland" under the former part of Article 2 subparagraph 1 (a) of the Farmland Act shall be determined based on the actual phenomenon of the land regardless of the land category in the public record. However, even if the land which was "farmland" under the Farmland Act is actually used for another purpose, if it is necessary to restore it to the original state as farmland because it was unlawfully diverted without obtaining permission, etc. for diversion of farmland, such change is merely temporary, and it still constitutes "farmland" under the Farmland Act (see Supreme Court Decision 2018Du43095, Oct. 25, 2018, etc.).

The lower court determined that the instant farmland still constitutes “farmland” stipulated in the Farmland Act on the ground that the instant farmland was unlawfully diverted without due process and should be restored in the future.

Such determination by the lower court is based on the legal doctrine as seen earlier, and it did not err by misapprehending the legal doctrine on farmland under the Farmland Act, contrary to what is alleged in the grounds of

2. Regarding ground of appeal No. 1

A. Article 6(1) of the Farmland Act provides that “The farmland shall not be owned by any person other than the person who uses or uses it for his own agricultural management.” However, Article 6(2) provides that “in any of the following cases, the farmland may not be owned by any person other than the person who uses or uses it for his own agricultural management, notwithstanding paragraph(1).” Article 6(2) provides that “Where the farmland is acquired and owned by inheritance [including testamentary gift to the inheritor; hereinafter the same shall apply] under subparagraph 4 of the same Article.”

In addition, Article 7 (1) of the Farmland Act, which prescribes the maximum limit of farmland ownership, provides that a person who does not acquire farmland by inheritance but conducts agricultural management shall own only a total of 10,000 square meters of farmland by inheritance.

Meanwhile, Article 10(1) of the Farmland Act, which provides for the disposition of farmland, etc. not used for agricultural management, lists the following cases: “Where a farmland owner falls under any of the following subparagraphs, he/she shall dispose of the relevant farmland within one year from the date on which such cause occurs,” and “where the head of a Si/Gun/Gu recognizes that he/she has not used, or has not used, his/her farmland for his/her own agricultural management without any justifiable reason prescribed by Presidential Decree, such as natural disasters, farmland improvement, diseases, etc. ( Subparagraph 1)” or “where he/she has proved that he/she has owned, beyond the maximum limit of farmland ownership under

B. Comprehensively taking account of the language, structure, history, legislative intent, etc. of the aforementioned relevant statutes, inasmuch as Article 10(1)1 of the Farmland Act does not apply to farmland not exceeding 10,000 square meters acquired by inheritance, it cannot be deemed that there is a duty to dispose of farmland even if it is not used for one’s own agricultural management without justifiable grounds prescribed by Presidential Decree. The reasons are

1) Chapter 2 of the Farmland Act provides for the principle that “the ownership of non-self-owned farmland shall be prohibited” (Article 6(1)), and exceptions thereto shall be permitted (Article 6(2)). In addition, the Farmland Act provides for the general disposal obligation for non-self-owned farmland in response to Articles 6 and 7 of the Farmland Act, and provides for the disposal obligation for farmland not used for agricultural management, such as prescribing the maximum limit of ownership (Article 7) even if exceptionally permitted ownership. In addition, when interpreting the applicable scope of Article 10(1) of the Farmland Act, the Farmland Act also provides for the general disposal obligation for non-self-owned farmland in response to Articles 6 and 7(1)1 of the Farmland Act, and provides for the disposal obligation for farmland in accordance with subparagraphs 3 through 6 of the same Article.

2) Articles 6(2)4 and 7 of the Farmland Act only provide for the upper limit of size while allowing non-self-employed farmland owned by inheritance without any specific condition, and accordingly, Article 10(1)6 of the same Act provides for the provision that recognizes the obligation to dispose of farmland exceeding the upper limit of ownership. The grounds for recognizing the ownership of farmland within a certain size are to guarantee property rights. However, it is difficult to deem that the grounds for recognizing the ownership of farmland within the upper limit of ownership are not used for agricultural management, on the ground that the inherited farmland is not used for agricultural management.

3) Articles 6(2) and 7(1) of the Farmland Act are interpreted as a provision that regulates not only the acquisition of farmland but also the continuous ownership after the acquisition of farmland, by distinguishing between “acquisition” and “ownership” of farmland, and thus, Articles 6 and 7 of the Farmland Act are interpreted as a provision that regulates not only the continuous ownership after the acquisition of farmland.

4) Article 7(1) of the Farmland Act stipulating the maximum limit of ownership of inherited farmland permits a person who does not separate management through one’s own agricultural management and lease and who does not engage in agricultural management to own up to 10,000 square meters. In addition, Article 7(4) of the same Act provides that “in the case of lease or free lease of farmland pursuant to Article 23(1)7, the farmland may continue to own the farmland during that period, notwithstanding paragraph (1) or (2), even if it exceeds the maximum limit of ownership.” Therefore, the farmland may be owned even if it does not engage in agricultural management up to 10,000 square meters among inherited farmland, and the area in excess thereof shall be deemed to have been continuously permitted if it satisfies the requirements of Article 23(1)7.

5) In the case of inherited farmland, it is possible to acquire and own without regard to the area pursuant to Article 6(2)4. If all inheritances are not used for agricultural management, if all inheritances are deemed subject to the disposal obligation, there is no need to set the upper limit of ownership under Article 7(1). The purport of setting the upper limit of ownership of 10,000 square meters for a person who does not engage in agricultural management in Article 7(1) is that even if it is not used for agricultural management up to 10,00 square meters, it may continue to be owned, and it is reasonable to view that it is not subject to the disposal obligation.

6) If Article 10(1)1 of the Farmland Act provides that Article 10(1)1 of the same Act does not limit the language and text of the farmland subject to its application, if all farmland can be subject to its application, it shall meet the requirements under each subparagraph of Article 6(2) of the Farmland Act allowing non-self-employed farmland ownership, but if it does not fall under Article 9 of the Enforcement Decree of the Farmland Act concerning justifiable reasons that are not used for its own agricultural management, it shall be deemed that the disposal obligation arises, and any significance under Article 6(2) of the Farmland Act may be raised.

7) Article 9(1)1 of the Enforcement Decree of the Farmland Act lists cases where farmland owned is leased or leased free of charge pursuant to Article 23(1) of the Farmland Act, among justifiable grounds not used for one’s own agricultural management under Article 10(1)1 of the Farmland Act. However, Article 23 of the Farmland Act is located in Chapter 3 on “use of farmland” other than Chapter 2 on farmland ownership, and does not stipulate lawful lease, etc. of farmland acquired by inheritance, and does not enforce lease, etc. In view of the fact that Article 9 of the Enforcement Decree of the Farmland Act, which provides for “justifiable cause”, was introduced only at the time of the revision of the Farmland Act, since the provision on the obligation to dispose of farmland was introduced, it cannot be said that there is no basis for interpreting the obligation to dispose of the farmland acquired by inheritance on the ground that the obligation to dispose of the farmland does not occur on the ground that lease, etc. under Article 23(1) of the Farmland Act does not occur.

8) If inheritance as to farmland under the current Farmland Act continues, a problem may arise that a non-self-employed farmland will be gradually increasing in the future. However, such a problem is a legislative solution to harmonize the guarantee of property rights and the principle of light-to-land freedom. It is beyond the interpretation theory of the current Farmland Act even though the legislation that does not engage in agricultural management for farmland of not more than 10,00 square meters acquired by inheritance in order to enhance agricultural productivity or achieve the principle of light-to-be freedom. Moreover, it is beyond the legislation that a person, other than a farmer, is obliged to dispose of farmland. Moreover, since farmland acquired by inheritance is still “farmland” and its land category is still “farmland,” even if a person, other than a farmer, continues to own it, it does not lose its nature.

C. Nevertheless, the lower court determined otherwise, that the instant disposition was lawful on the ground that Article 10(1)1 of the Farmland Act applies, insofar as farmland less than 10,000 square meters acquired by inheritance is not leased pursuant to Article 23(1) of the Farmland Act. In so doing, the lower court erred by misapprehending the legal doctrine on the obligation to dispose of farmland under the Farmland Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

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 Lee Ki-taik (Presiding Justice)