Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Kang Jae-hun, Counsel for defendant-appellee)

April 22, 2009

Jeju District Court Decision 2008Gadan4864 Decided November 11, 2008

1. The part against the defendant in the judgment of the first instance against the Republic of Korea is revoked, and the plaintiff's claim against the defendant is dismissed.

2. Defendant 2’s appeal is dismissed.

3. The plaintiff bears the total costs of the lawsuit between the plaintiff and the defendant Republic of Korea, and the costs of appeal between the plaintiff and the defendant 2 are borne by the defendant 2.

1. Purport of claim

Defendant Republic of Korea: (1) on March 6, 2008, Defendant Republic of Korea: (2) on the 1, 2, 34, 35, 38, 40, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 17, and 48 square meters on board each of (b) 24, 32, 33, 34, 37, 39, 41, 42, 41, 42, 12, 208; (2) on each of the following 24, 27, 164, 27, 17, 205 square meters on board each of the above 24, 194, 206, 274, 205, 206, 274, 275, 275, 274.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim against the defendants is dismissed in entirety.

1. Basic facts

A. Transfer of ownership on the Plaintiff’s land

(1) On August 1, 1984, Nonparty 1 and Nonparty 2 completed the registration of transfer of ownership with respect to each 1/2 share on August 1, 1984, Nonparty 1 purchased Nonparty 2’s share and completed the registration of transfer of ownership with respect to each 1/2 share on October 20, 1984, Nonparty 1 purchased Nonparty 2’s share (i.e., Nonparty 1 completed the registration of transfer of ownership with respect to the entire land), Nonparty 3 on August 22, 1985, Nonparty 3 completed the registration of transfer of ownership, May 18, 190, and December 111, 2003.

(2) On March 31, 197, Nonparty 5 completed the registration of ownership transfer on March 31, 197, and on January 23, 2007, the Plaintiff completed the registration of ownership transfer on order of January 23, 2007.

B. The land of Defendant Republic of Korea

The portion (B) of the land owned by the Plaintiff is 48 square meters (hereinafter referred to as “the part (b) of the instant land”) connected in sequence with each point of (1), 24, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 12, 13, 14, 15, 16, 17, and 17, and 48 square meters (hereinafter referred to as “the part (b) of the instant land”) among the roads identical to the attached Table 24, 24, 32, 34, 35, 36, 37, 39, 40, 41, 422, 12, 13, 14, 17, and 254, 205, 265, 27, 205, 27, 25, 27, 20.

C. Defendant 2’s land

The portion (B) of the part (C) and the part (C) and the part (C) and the part (C) and the land (hereinafter referred to as the “number 4 omitted”) are adjoining to the land owned by the Plaintiff that are owned by the Defendant 2. The land in this case (number 5 omitted) is owned by the Defendant 2. The land in this case is owned by the Defendant 2.

[Ground of recognition] The facts without dispute, Gap evidence 1 to 3, Gap evidence 2-1 to 3, the verification result of this court, the appraisal commission (including the result of additional appraisal commission) to the University Cadastral Corporation, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's possession

In full view of the purport of the pleadings as a result of the appraisal commission (including the result of additional appraisal commission) to the university land register Corporation of this court, Gap evidence 2-1 to 3, and the result of the verification by this court, the whole purport of the pleadings is as follows: (i) the land of this case and the land of this case (number No. 4 omitted) on the part of the land of this case (number No. 5 omitted) and the land of this case (number No. 4 omitted); (ii) the land of this case was located on the part of the land of this case (number No. 4 omitted); (iii) the land of this case and the part of the land of this case (number No. 5 omitted); and (iv) the land of this case which the plaintiff owned the land of this case and the part of the land of this case (number No. 5 omitted); and (iv) the land of this case, the land of this case and the part of the land of this case, the land of which the plaintiff owned the forest land of this case were located.

Therefore, the Plaintiff succeeded to the possession of Nonparty 1, 2, 3, and 4, which is the former owner of the area of 1,646 square meters in Arail-dong (number 5 omitted) in Jeju-si, and the possession of Nonparty 5, who is the former owner of the area of 701 square meters in Arari-dong (number 6 omitted), in Jeju-si, by succeeding to the possession of Nonparty 5, who is the former owner of the area of 701 square meters in Arari-dong (number 4 omitted), and it is recognized that the Plaintiff occupied the land of this case and the part of the land of this case for 20 years or more, and as long as it is presumed that the Plaintiff occupied the land in peace and openly and openly with the intent of the Plaintiff, the Defendants are liable

B. Determination as to the defendants' assertion

(1) Determination on Defendant Republic of Korea’s defense

Defendant Republic of Korea has a defense that the land in the instant case (b) and (g) falls under the roads that are administrative property, and thus, is not subject to the acquisition by prescription.

The term "administrative property under the State Property Act" refers to the property owned by the State that is directly used or determined to be used for public, public, or corporate purposes (see Article 4(2) of the State Property Act). Among them, the artificial property such as a road is an administrative property only when it is designated by a statute or determined to be used for public purposes by an administrative disposition, or when it is actually used as administrative property. In particular, a road has the form of a road, and a road is determined and publicly announced as a road route under the Road Act, a road zone is determined and publicly announced, or a road is constructed through a procedure under the Urban Planning Act or the Urban Redevelopment Act (see Supreme Court Decision 9Da5432 delivered on February 25, 200).

Comprehensively taking into account the purport of the entire pleadings as to this case’s health expenses, Eul’s 1,2, Eul’s 5-1 through Eul’s 7-2, the entire purport of the pleadings is as follows: on February 6, 1963, “the construction of routes for Class 1,191 national highways and Class 2 national highways” the route of Class 101-1 national highways, which are Class 2 national highways of Type 1,00 in Jeju-si via Hansan-si. However, on January 1, 1967, the Defendant’s land number was changed to 11-line national highways pursuant to Presidential Decree No. 2845; on January 1, 1967; on September 1, 1967, the Defendant’s land number was omitted in the public road number of Grade 2, 99,409,329,97,000 square meters on the national highway’s 11-line road; on September 9, 1963.

As to this, since the plaintiff had been occupied and managed as a parcel which was actually included in the boundary fence of the land (number 5 omitted) in Jeju-dong, Jeju-do, Jeju-do, the land owned by the plaintiff, the neighboring land since the 1960s, without completely losing the form of the road from the late 1960s, it cannot be deemed that there was an expression of intent to abolish the land for public use solely on the basis of the fact that the property is not actually used for its original purpose. Thus, it cannot be deemed that there was an expression of intention to abolish the land for public use, solely on the ground that the part of the land belonging to the administrative agency is not used for its original purpose, but it cannot be deemed that there was an expression of intention to abolish the part of the land for public use (number 5 omitted) including the boundary fence of the land for public use (number 2006Da16055, Jun. 15, 206).

(2) Determination as to Defendant 2’s assertion

Defendant 2 asserts that the Plaintiff’s possession is an unauthorized possession without the authority to possess or occupy by force or rain.

In light of the fact that it is difficult to believe that each entry of Eul evidence Nos. 1 through 6-1 through 6 is consistent with it as it is, each entry of Eul evidence Nos. 1, 3, Eul evidence Nos. 4-1, 2, Eul evidence Nos. 4-1, 5-2, Eul evidence Nos. 1 and 2-1 through 4 of Eul evidence Nos. 2, and there is no other evidence to acknowledge it. Rather, as recognized earlier, it is difficult to view the plaintiff's possession as an occupation by force, force, or unauthorized occupation by force, since it is difficult to view the plaintiff's possession as an occupation by force, force, or force without permission.

C. Sub-decision

Therefore, Defendant 2 is obligated to implement the registration procedure for transfer of ownership on August 1, 2004 with respect to the land in dispute (number 4 omitted) of this case to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim against the defendant Republic of Korea is dismissed as it is without merit, and the plaintiff's claim against the defendant 2 is justified. Since the part against the defendant Republic of Korea among the judgment of the court of first instance is unfair with different conclusions, the part against the defendant's appeal against the defendant is accepted by the defendant Republic of Korea and the part against the defendant's loss is revoked, and the plaintiff's claim against the defendant 2 is dismissed. The part against the defendant 2 is justified with this conclusion, so the appeal by the defendant 2

[Attachment 1, 2, and Reference Notice]

Judges Kim Jong-tae (Presiding Judge)