(a) Requirements for administrative property to become an object of prescriptive acquisition;

(b) Whether the administrative property is not used for its original purpose, but for its original purpose, can be deemed to have been declared a declaration of intention;

(a) Administrative property cannot be subject to judicial transactions unless it is closed for the public, so it shall not be subject to prescriptive acquisition.

B. The expression of intention of disuse for public use is either explicitly or implicitly, but there is a legitimate declaration of intention, and the fact that the administrative property is not actually used for its original purpose cannot be deemed to have been the expression of intention of disuse, and the burden of proving the fact that the administrative property is removed for public use and is subject to prescriptive acquisition is the person who asserts prescriptive acquisition.

Article 245 of the Civil Act; Articles 5(2) and 30 of the State Property Act; Article 74 of the Local Finance Act

A.B. Supreme Court Decision 92Da4973 delivered on July 27, 1993 (Gong1993Ha, 2395). Supreme Court Decision 93Da54040 delivered on February 8, 1994 (Gong1994Sang, 1010). Supreme Court Decision 80Da236 delivered on December 14, 1982 (Gong1983, 262) (Gong1983, 1082) delivered on June 14, 1983, 92Da25489 delivered on November 10, 1992 (Gong193, 85)

[Judgment of the court below]

[Defendant-Appellee] Defendant 1 and 3 others

Busan High Court Decision 92Na15260 delivered on October 6, 1993

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

The grounds of appeal are examined. The supplemental appellate brief is considered to the extent of supplement in case of supplemental appellate brief.

On the third ground for appeal

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

A. The owner of the same site (number 2 omitted) located in Busan Jung-gu, Busan, ○○○○, 260.9 square meters, which was adjacent to each other from the Japanese colonial era, owned the building on the ground, including the instant building site among the said (number 1 omitted) sites. Nonparty 1, his father, purchased the above (number 2 omitted) site and the building from Nonparty 2 on March 15, 1950, and acquired the above (number 2 omitted) site and the building from Nonparty 1, his father, and subsequently paid the purchase price on March 15, 1950, it was believed that the above (number 2 omitted) site portion was included in the above (number 2 omitted) site and used as a warehouse, and the Plaintiff acquired the building on the ground portion of the instant site from around 6, 1959 to December 15, 197, and determined that the above (number 1 omitted) portion was owned by Defendant 1, the owner of the instant land, and that the remaining portion was designated as the sale price of the instant land at around 15.

B. The defendant's assertion that the above (number 1 omitted) site was designated as a site for the central wholesale market from November 8, 1940 to be used as a site for the public use since it became administrative property since it became a site for the central wholesale market from around November 8, 1940 to be used as a site for the public use. Since the above central wholesale market was continuously used as part of the building site for the local police agency under the jurisdiction of the Si of the defendant even after it moved to another site on March 24, 1971, the above part of the site in this case is not subject to prescriptive acquisition. The above (number 1 omitted) site was designated as a site for the central wholesale market on November 8, 1940, but it was actually used as a site for the central wholesale market. Thus, the defendant's assertion that the above (number 1 omitted) site is a site for the public use as a site for the central wholesale market, and the defendant's assertion that the above part of the site in this case was not acquired after the completion of prescription.

2. The administrative property cannot be an object of private transaction unless it is closed for the public, so it shall not be subject to the acquisition by prescription. The expression of intention of abolition for the public use shall be lawful, regardless of whether it is explicitly or implicitly, and it shall not be deemed that there was an expression of intent of disuse solely on the fact that the administrative property is not actually used for its original purpose (see, e.g., Supreme Court Decision 80Da236, Dec. 14, 1982; Supreme Court Decision 83Meu181, Jun. 14, 1983; Supreme Court Decision 92Da4973, Jul. 27, 1993; etc.). The burden of proof as to the fact that the administrative property is originally abolished for the public use and is subject to the acquisition by prescription shall be deemed to be the plaintiff who asserts the acquisition by prescription.

The court below held on November 8, 1940 that the site in this case, which was owned by the defendant Si, was designated as the site of the central wholesale market in which the land was operated by the defendant Si on the land cadastre, and there is no evidence that the site in this case was used as the site of the central wholesale market. However, as acknowledged by the court below, if the defendant market designated the site in this case, which was owned by the defendant Si, as the site of the central wholesale market in which the defendant market was operated by the defendant market, as an administrative property, barring any special circumstance, it should be deemed that the site in this case was an administrative property for the administrative purpose since the defendant market declared its intention to commence the public use. As long as the site in this case was designated as administrative property, the fact that it was not used for the original purpose without the defendant's declaration of intention to discontinue the public use of the land in this case does not lose its character as the public property. Accordingly, the fact that the site in this case was not used as the site of the central wholesale market, which is the original purpose of acquisition by prescription, is insufficient to prove that the plaintiff's intention of abolition.

3. The judgment of the court below is erroneous in the misapprehension of legal principles as to the disuse of administrative property or the acquisition of prescription for administrative property, or in the misapprehension of legal principles as to the lack of reason, the failure of reason, the failure of reason, or the burden of proof

Therefore, the judgment of the court below is omitted, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)