Ulsan Metropolitan City (Government Law Firm Corporation, Attorneys Lee Jae-type et al., Counsel for the plaintiff-appellant)

Han Bank Co., Ltd. (Bae & Yang LLC, Attorneys Excellent-min et al., Counsel for the plaintiff-appellant)

December 20, 2018

1. The plaintiff's main claim is dismissed.

2. On August 18, 2017, the Defendant shall implement the registration procedure for transfer of ownership on each land listed in the separate sheet to the Plaintiff.

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

In the first place, the defendant shall execute the procedure for the registration of ownership transfer on October 14, 1974 with respect to each land listed in the separate sheet to the plaintiff. It is preliminary, as set forth in paragraph (2) of this Article.

1. Facts of recognition;

A. Status of the parties

The Korea Trust Bank (hereinafter “Korea Trust Bank”) was merged with the Seoul Bank on August 2, 1976, and became the Seoul Trust Bank (Seoul Bank on June 1, 1995; hereinafter “Seoul Trust Bank”); Seoul Trust Bank was merged with the Han Bank on December 2, 2002 (hereinafter “ Han Bank”); and Han Bank was merged with the Korea Exchange Bank on September 1, 2015 and became the Defendant.

(b) the establishment of a new real estate and the construction of Ulsan-do Highway;

1) On February 28, 1969, the Korea Trust Bank established the Korea Trust Bank, a subsidiary company, for the purpose of managing and operating social overhead capital facilities, such as real estate sale, housing site preparation, housing construction, and toll roads (hereinafter “Korea Trust Bank”).

2) On May 26, 1969, the Korea Expressway Corporation submitted a plan for the construction project of Ulsan and Seoyang Highway (the extended 16.5km, the width of 2.4m (4m) and the project cost of 1.6 billion won) to the Minister of Construction and Transportation. On June 26, 1969, the Ministry of Construction and Transportation held a meeting on the inducement of private investment in which the Korea Trust Bank, Han Jae real estate, etc. participated and consulted on the plan for raising funds.

3) On June 19, 1969, Hansan Real Estate obtained permission from the Minister of Construction for the construction of a charged road between Ulsan and Ulsan pursuant to Article 12 of the former Toll Road Act (amended by Act No. 2189 of Jan. 1, 1970), and around that time, it commenced the construction of the said new road and obtained approval for the use on December 29, 1969 (hereinafter referred to as the “the instant public road”), among the sections 15.7 km between Ulsan and Ulsan-do Highway and the 14.3 km between the 15.7 km and the 14.3 km between Ulsan-do Highway and the 14.3 km between the 15.3 km new road and the 1.4 km of the 2nd free road from the new road to the actual road. In addition, the instant road and the access road collectively referred to as the “the instant public road”).

4) Meanwhile, while opening the instant public-private partnership road, Han new real estate purchased each land indicated in the separate sheet to be incorporated into the access road (hereinafter “each land of this case”) and completed the registration of ownership transfer as to each land of this case.

C. Progress of consultation on the management plan of the public-private partnership road in this case

1) Since August 1971, the Korea Trust Bank invested high interest trust assets in infrastructure without profitability (private roads of this case, Namsan 1 tunnels, and Northern Dokdong tunnels), the losses incurred in new real estate were accumulated, which are related agencies, the economic planning committee, construction division, Seoul Special Metropolitan City, the Korea Expressway Corporation, the Korea Trust Bank, the Korea Trust Bank, and the Korea New Real Estate Corporation were discussed about the disposal plan of the instant public roads, etc. from around August 1971.

2) A provisional conclusion was made on August 12, 1974, which held on August 12, 1974 at the meeting of the Economic Planning Board Vice Minister, the Vice Minister of Finance, the Vice Minister of Construction, the Vice Minister of the Seoul Metropolitan Government, the Vice Minister of the Korea Highway, the President of the Korea Trust Bank, the Prime Minister, the Chief Secretary of the Planning and Management Office, and the Chief Secretary of the Bluan Economic Bureau. At the time of the meeting, the term “Seoul Metropolitan Government shall respectively acquire and manage the Vice Minister’s Vice Minister’s Vice Minister’s Vice Minister’s Vice Minister’s Vice Minister’s Vice Minister

3) On September 7, 1974, the Secretary of the Ministry of Finance and Economy prepared a report that “the plan to adjust the new real estate and to enhance the number of Korean trust banks” reflecting the above provisional conclusion, and approved by the President. On September 11, 1974, the Secretary of the Office of Secretary of the President sent a letter of presidential instruction to the effect that “the head of the relevant agency (the Secretary of the Ministry of Finance and Economy, the Minister of Construction, the Seoul Special Metropolitan City Mayor, the Secretary of the Office of Administrative Coordination, the President of the Korea Highway, the President of the Korea Highway Corporation, and the President of the Korea Trust”) shall take measures immediately under his jurisdiction, and the Secretary of the Ministry of Finance and Economy shall take full account of the results thereof, and shall report the plan to normalize the former.”

4) The related agencies related to the instant public-private partnership roads have consulted about the acquisition and transfer system of the said public-private partnership roads from September 14, 1974 to October 14, 1974. In relation to the results of the consultation, the related agencies related to the instant public-private partnership roads and the Korea Highway Corporation prepared by the Construction and the Korea Highway Corporation, as follows:

It is necessary to determine the timing of acquiring the privately financed road of this case as of November 1, 1974, and to complete all necessary measures until October 25, 1974. Of the privately financed roads of this case, the access road of this case shall be transferred to the plaintiff in the form of donation by the Korea Trust Bank in the form of donation. - The president of the Korea Road Corporation in the form of donation by the Korea Expressway Corporation - the president of the Korea Expressway Corporation in the form of instructions - all administrative problems concerning the handover and takeover of the privately financed roads of this case are actively cooperate to the maximum extent possible after prompt completion of the plan. However, the access road problem is not an expressway by the instruction form, but is not a road by the city planning plan of the plaintiff, but it is difficult for the Korea Expressway Corporation to manage in the future. In addition, since the Road Act also takes charge of it at the time, it is reasonable for the Korea Expressway Corporation to present its internal treatment as a consultation with the plaintiff, and thus, it is necessary for the Korea Expressway Corporation to cooperate with the Minister of Land, Infrastructure and Transport Corporation to meet its initial relationship with the Korea Expressway Corporation.

5) On October 25, 1974, the Korea Expressway Corporation entered into a contract for the transfer and acquisition of the Highway and all facilities and fixtures attached thereto from the Korea Highway Corporation to the 2,855,722,688 won. The above transfer and acquisition price reflects the principal and interest on the investment of the Ulsan Expressway and the amount equivalent to 1/2 of the investment principal and interest on the access road of this case.

6) On November 9, 1974, the Korea Trust Bank concluded a succession contract with the Korea Trust Bank with the terms that “it shall transfer assets of new real estate at the same amount as the amount of transfer or acquisition under each transfer or acquisition contract with the Seoul Special Metropolitan City and the Korea Expressway Corporation, but the Korea Trust Bank succeeds to and acquires the rights and obligations under each transfer or acquisition contract and the remaining assets and liabilities,” and subsequently completed liquidation registration on October 8, 1975 upon receiving a ruling of bankruptcy or discontinuation of bankruptcy.

D. Possession and possession of each of the instant lands

1) The Seoul Trust Bank filed a lawsuit (Seoul District Court 97Gahap23377) claiming the implementation of the procedure for the registration of ownership transfer on each of the land of this case against the Han new real estate (Seoul Trust Bank 97Gahap23377) and rendered a favorable judgment on June 10, 197, and completed the registration of ownership transfer on each of the above land on August 18, 1997.

2) On February 19, 1975, the Plaintiff transferred the management duties of access roads from Han real estate on February 19, 1975 in accordance with the urban planning (revision) decision of the Minister of Construction and Transportation, and thereafter occupied each of the instant land.

【Ground for recognition】 The fact that there has been no dispute, entry of Gap 1 through 14 (including virtual numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

On October 14, 1974, the Korea Trust Bank agreed with the Korea Expressway Corporation, etc. to the effect that “the Korea Trust Bank will not accept access roads, but will pay 1/2 of the principal and interest on investment in access roads to the Korea Trust Bank, and transfer the access roads to the Plaintiff in the form of donation acceptance.” Since the Plaintiff occupied and managed access roads from around that time, the Defendant, who is the general successor of the Korea Trust Bank, is obligated to implement the registration procedure for transfer of ownership on the ground of an agreement on October 14, 1974.

B. Determination

In this case, from September 14, 1974 to October 14, 1974, the agency related to the public-private partnership road of this case consulted with the acquisition system of the above public-private partnership road of this case. The minutes of October 14, 1974 prepared by the construction division are the major contents of the agreement, and the acquisition time of the public-private partnership road of this case shall be determined as of November 1, 1974 and necessary measures shall be completed until October 25, 1974; the access road of this case shall be transferred to the plaintiff in the form of donation; the Korea Highway Corporation shall be transferred to the plaintiff in the form of donation; the acquisition time of the private partnership road of this case shall be determined as of October 25, 1974; the acquisition price of the private partnership road of this case shall be determined as of October 25, 1974 and all facilities and fixtures attached thereto shall be 2,85,7268 won, which shall be reflected in the acquisition price of the private partnership.

However, the following circumstances, which are acknowledged in addition to the purport of the entire arguments, are as follows: (i) Han real estate made a statement to the effect that, according to the result of the meeting held on October 14, 1974, the Seoul Special Metropolitan City and the Korea Highway Corporation entered into each transfer contract on the site of Ulsan Highway; (ii) it appears that the objective disposal documents, such as the transfer and takeover contract on the land of this case falling under the access road site, are not prepared; and (ii) according to the minutes of October 14, 1974, the construction secretary made a statement to the effect that he would mutually cooperate between the Korea Highway Corporation and the Korea Trust Bank while presenting the plan to contribute access road to the Plaintiff; (iii) the President of the Korea Trust Bank stated that “the relationship between the access road and the Plaintiff is to be resolved by the Korea Trust Bank” and did not confirm whether the Plaintiff expressed his intent to contribute land to mutual cooperation; (iv) it is difficult to conclude that the agreement between the Korea Expressway Bank and the Korea Expressway Corporation had no further been established on the premise that the land of this case was established between the Plaintiff.

3. Judgment on the conjunctive claim

A. Determination on the cause of the claim

On February 19, 1975, the Plaintiff commenced possession of each land of this case as the managing authority of access roads according to the urban planning (revision) decision of the Construction Division from February 19, 1975. The Plaintiff’s possession was completed on August 18, 1997, when the ownership transfer registration was completed in the name of the Seoul Trust Bank for each land of this case, the fact that 20 years have passed since August 18, 1997 is presumed to have been completed. Meanwhile, the Plaintiff’s possession of each land of this case was presumed to have been made in peace and public performance with his intention to own pursuant to Article 197(1) of the Civil Act. Thus, the prescriptive acquisition of each land of this case was completed on August 18, 2017, when 20 years have passed since the date the ownership transfer registration was completed.

Therefore, the defendant, who is the general successor of the Seoul Trust Bank, is obligated to implement the registration procedure for transfer of ownership on each land of this case to the plaintiff, except in special circumstances.

B. Judgment on the defendant's argument

1) The Defendant asserts that the Plaintiff’s possession of each of the instant lands is the possession of a third party, and thus, examined.

2) If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance with his own will under Article 197(1) of the Civil Act, and such presumption applies likewise to cases where the State or a local government, which is the managing body of the cadastral record, occupies the real estate owned by another person without permission, even though the possessor is aware of the absence of such legal requirements without permission at the time of commencement of possession, barring special circumstances, the possessor shall be deemed not to have the intention to reject another person’s ownership and to occupy it. Thus, the presumption of possession with intention to own is broken. However, even if a local government or a local government fails to submit documents concerning the procedure for acquiring land claiming the completion of acquisition by prescription, it is difficult to view that the State or a local government lawfully acquired the ownership after undergoing the procedure for acquiring the public property at the time of commencement of possession, and it is difficult to see that it has been proven that it has been occupied without permission without permission, without permission, without the legal requirements of acquisition by ownership (see Supreme Court Decision 2007208.268.207.207.

3) According to the statements in Eul evidence Nos. 1 through 6, the defendant sent a public notice to the Ulsan Metropolitan City Mayor on February 15, 2006 requesting the Korea Highway Corporation to provide compensation for the non-land for each of the instant land, and on December 5, 2008, the head of the Ulsan Metropolitan City General Construction Headquarters to the Korea Highway Corporation on December 5, 2008, "each of the instant land in the name of the defendant in the name of the defendant in the name of the defendant in the access road is determined to have not been adjusted since the ownership of the access road was determined to have been unregistered in the process of transferring the ownership after acquiring the private road in this case, it is recognized that the defendant requested the Korea Highway Corporation to provide compensation for the non-owned land in the process of purchasing the land in this case to the Korea Expressway Corporation on October 1, 1974, and the head of the Korea Expressway General Construction Corporation was able to provide compensation for the non-registered land in the process of purchasing the land in this case to the Corporation on February 19, 2019, 2019.

(4) However, even if it is difficult to view that an agreement was reached between the relevant agencies at the time of the meeting of October 14, 1974 that the Korea Trust Bank decided to contribute each of the instant lands to the Plaintiff, as seen above, by adding up the purport of the entire pleadings as seen above, (1) it cannot be deemed that the Plaintiff’s possession was occupied or the presumption of autonomous possession was reversed merely because of such circumstances; (2) the head of the Ulsan Metropolitan City Construction Headquarters did not request compensation for each of the instant lands after the lapse of 30 years from the meeting of October 14, 1974; and (3) it is difficult to view that the pertinent authorities did not complete the procedure for acquiring new real estate from September 14, 1974 to October 14, 1974, the Plaintiff did not have completed the procedure for acquiring new real estate from the Korea Highway Corporation to the point of view that there was no specific circumstance for the Plaintiff’s consultation on the acquisition of new real estate on the acquisition of new land from the Korea Highway Corporation.

4. Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is accepted as it is decided as per Disposition.

(attached Form omitted)

Judges Kim Jung-nam (Presiding Judge)

1) If there is no decision of the Minister of Construction and Transportation on the urban planning (change) of the access road, the access road part must bear the obligation to maintain, repair, and manage the new real estate under Articles 12(2) and 11(3) of the former Toll Road Act (amended by Act No. 3072, Dec. 31, 197).