[1] Whether the negligence of a public official can be recognized in a case where there are various opinions on the interpretation of statutes, and where the relevant public official performed his/her duties in accordance with any one of the opinions, while performing his/her duties in accordance with the reasonable grounds, with due care (negative)

[2] The case holding that the court below erred by misapprehending legal principles in holding that in a case where the court below erred in the misapprehension of legal principles, prior to the first determination of the legal principle that "the authority to externally prove ownership is to prepare and keep a cadastral record and to the head of a tax office in charge of the registration, and the head of a Si/Eup/Myeon/Dong has no authority to do so, a public official of the local government Gap in charge of the application for the registration of recovery of destruction based on the land ownership certificate prepared by the head of Eup/Myeon/Dong where the real estate was located, in a case where the court below completed the registration of recovery of destruction based on the land ownership certificate prepared by the head of Eup/Myeon/Dong where the public official of the local government Gap in charge of the application for the registration of recovery of destruction was found to have been unable to have prepared by an average public official in charge of the same duties at the time when the above public official was fully aware that the documents required for the registration of recovery of destruction could not have been prepared, even if he did not have any ordinary care to do so.

[1] Article 2 (1) of the State Compensation Act / [2] Article 2 (1) of the State Compensation Act, Article 24 (see current Article 17) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201); Article 55 subparagraph 9 (see current Article 29 subparagraph 9), Article 79 (defence), Article 80 (defence), Article 4 (see current Article 2 subparagraph 18, and Article 71) of the former Cadastral Act (Amended by Act No. 829, Dec. 8, 1961); Article 4 (see current Article 2 subparagraph 18, and Article 71 of the Act on Land Survey, Waterway Survey and Cadastral Records)

[1] Supreme Court Decision 2002Da31018 decided Jun. 11, 2004 (Gong2004Ha, 1145)

[Defendant-Appellant] Unlimited Partnership (Law Firm Barun, Attorneys Kim Yong-pum et al., Counsel for defendant-appellant)

Gyeonggi-do (Attorney Lee Han-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2018Na2059411 decided September 18, 2019

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

The grounds of appeal are examined.

1. Based on its stated reasoning, the lower court partially accepted the Plaintiff’s claim of this case seeking damages due to tort by a public official affiliated with the Defendant, who breached his duty of care in the course of filing an application for registration of the recovery of destruction of the original land of

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. In general, if a public official takes a wrong administrative disposition due to a lack of knowledge or necessary knowledge of the relevant laws and regulations, he/she shall not be deemed to be a public official, not a legal expert. However, if the interpretation of the Acts and subordinate statutes itself is not clear, and the interpretation of the Acts and subordinate statutes does not have any significance, and thus, if it is impossible to do so due to the lack of any doubt, such as precedents, theories, and precedents, the interpretation of the Acts and subordinate statutes itself does not coincide with the position of the Supreme Court after the relevant public official found reasonable grounds for his/her negligence, and thus, it is difficult to expect an average public official in good faith to faithfully implement the relevant laws and regulations, even if the processing results in the illegal execution of the laws and regulations, and therefore, it is difficult to expect that the public official's negligence should be recognized until such a case (see Supreme Court Decision 2002Da31018, Jun. 11, 2004).

B. Review of the reasoning of the lower judgment and the record reveals the following.

(1) A document to be attached to an application for registration of recovery of ownership of real estate, the whole or part of which has been destroyed due to a disaster, such as the six or twenty-five incident prescribed by the Chief Justice of the Supreme Court on October 15, 1952, which is destroyed by a disaster, refers to a certificate prepared by a public official with the authority to prove that the applicant is the owner, and the authority to externally prove ownership is prepared and kept a cadastral record and the head of the competent tax office in charge of the registration affairs has no authority to prove the ownership of the land. The legal principle that the head of the Si/Eup/Myeon/Dong has no authority to prove the ownership of the land was first decided in the Supreme Court Decision 81Meu321 Decided January 12, 1982, and the above legal principle of the above precedents cannot be applied as it is thereafter decided.

(2) Whether the “official document evidencing rights” stipulated in the “Written Statement on the Execution of Registration for Restoration of Destruction” is limited to official document as stated in the above Supreme Court Decision is not clear in itself, nor can there be room for division of opinions.

(3) Until the Seoul High Court, the appellate court held that the registration of destruction and recovery based on the ownership certificate of the ownership of the government Eup was lawful and valid.

(4) Where a registrar fails to provide the accompanying information necessary for registration, he/she has an obligation to examine on his/her duty to reject the application for registration (see Article 29 subparag. 9 of the Registration of Real Estate Act, Supreme Court Decision 93Da46469, Jan. 14, 1994). In determining that a document required for the application for registration of destruction or recovery of loss of a public official belonging to the defendant was attached to the application of this case, he/she completed the registration without dismissing

C. Examining the above circumstances in light of the legal principles as seen earlier, it is difficult to view that the circumstance cited by the lower court and the evidence submitted by the lower court alone alone were insufficient to prove that a public official in charge of the Defendant’s work ought to have an ordinary care to have an average public official in charge of the same business in around 1954, even though he could have known that the public official failed to prepare the attached documents necessary for the registration of the recovery of loss of this case, and constitutes a case where the registration was completed by filing an application for the registration of recovery of loss of this case. Nevertheless, the lower court erred by misapprehending the legal principles on negligence in performing his duties, which led to failure to exhaust all necessary deliberations.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Min You-sook (Presiding Justice)