Korea Highway Corporation (Law Firm Woo, Attorneys Mayang-tae et al., Counsel for the defendant-appellant)

Hysung market (Law Firm, Attorney Choi Jae-at, Counsel for the plaintiff-appellant)

November 30, 2010

Suwon District Court Decision 2009Guhap11080 Decided February 11, 2010

1. The part against the defendant regarding the land Nos. 1, 3, and 4 in the annexed list among the judgment of the court of first instance shall be revoked, and the plaintiff's lawsuit corresponding to that part shall be dismissed

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant's disposition of rejection of an application for correction of registered matters in the cadastral record with respect to each real estate stated in the attached list against the plaintiff on July 20, 209 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition and related statutes;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Determination as to the legality of the claim portion relating to the land Nos. 1, 3, and 4 as indicated in the separate sheet among the instant lawsuit

We examine ex officio the legitimacy of this part of the lawsuit.

Around April 22, 2010 with respect to land No. 1 indicated in the attached list, the area is 158 square meters from 126 square meters to 158 square meters, with respect to land No. 3, the area is 58 square meters to 42 square meters from 58 square meters to 42 square meters on September 15, 2010, and with respect to land No. 4, the area is changed from 3,123 square meters to 2,874 square meters on each cadastral record around August 26, 2010, and all of the above land is subject to no dispute between the parties as alleged by the Plaintiff at the time of the application for correction of registered matters.

Therefore, among the lawsuits in this case, the purpose of the claim concerning each of the above lands has been achieved after the lawsuit in this case was filed, and the interest of the plaintiff in the lawsuit against the defendant was extinguished. Thus, the lawsuit in this part was unlawful.

3. Determination as to a claim for land Nos. 2, 5, 6, and 7 in the attached list

(a) Quotation of judgment of the first instance;

(B) Except for the part added to the judgment as stated below, the judgment of the court of first instance on the Defendant’s defense prior to the merits and the judgment on the merits of the case are as stated in each corresponding part of the judgment. Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

B. The portion added to the judgment on the merits

The defendant asserts that since the application for the correction of the land area registration by subrogation of the plaintiff on behalf of the landowner has a significant influence on the interests of the landowners due to the change of the area, it cannot be permitted without the consent of the land owners or the original final and conclusive judgment capable of setting up against the land owners. Thus, the disposition against the plaintiff that did not submit it is justified in that point.

However, Article 24(1) of the former Cadastral Act (amended by Act No. 9774, Jun. 9, 2009) provides that when a landowner finds any error in the registered matters in the cadastral record, the right to apply for the correction thereof shall be granted to the competent authority, but Article 28 Subparag. 1 provides that the applicant of a public project, such as the Plaintiff, may subrogated the application to the competent authority for the correction of the registered matters in the cadastral record. However, in principle, in order to ensure the smooth progress of the public project if the landowner fails to implement it at his/her discretion, it is reasonable to deem that the landowner has the right to apply for the subrogation thereof to the public project operator in order to ensure the smooth progress of the public project. ② Article 24(3) of the same Act explicitly provides that the boundary of neighboring land is changed due to the landowner’s correction by the landowner’s application, the competent authority may refuse to submit a written consent of the owner of the land or a final judgment set forth in the Presidential Decree by subrogation of the said land ex officio.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

Therefore, the part of the claim regarding the land Nos. 1, 3, and 4 in the separate sheet among the lawsuit in this case shall be dismissed, and the plaintiff's claim concerning the remaining part shall be accepted. Since the part against the defendant as to the land Nos. 1, 3, and 4 in the judgment of the court of first instance as to the above part of the lawsuit in this case is unfair in conclusion, it shall be revoked, and the lawsuit corresponding thereto shall be dismissed, and since the judgment of the court of first instance as to the remaining part is legitimate, the defendant's remaining appeal shall be dismissed, and the defendant's total cost of the lawsuit shall

[Attachment]

Judges Kim Yong-deok (Presiding Judge)