(영문) 서울행정법원 2013.3.29. 선고 2012구합36682 판결

From 4, 8, 197 to March 31, 1999, the Plaintiff is a person in charge of compensation duties in the C Regional Land Management Office’s compensation duty.

(b) Circumstances leading to the payment of compensation to D;

1) On July 24, 1997, C Regional Land Management Office entered into an entrustment contract with the certified judicial scrivener E on the registration work where the ownership of the land to be incorporated into the 'FF Round Construction and Packing Construction' (hereinafter referred to as the 'Road Construction') is transferred to the State.

2) On January 30, 199, C Regional Land Management Office determined the amount of compensation for the acquisition of public land by consultation as KRW 77,167,50 on the land of eight lots, including Jeonnam G, etc., (hereinafter referred to as “instant land”) to be additionally incorporated into the instant road works.

3) Meanwhile, regarding the instant land, the registration of creation of a mortgage over the maximum debt amount of 70 million won on October 15, 1996 and the maximum debt amount of 600 million won on June 27, 1997 was completed in the future of the Korea Development Bank.

4) On March 9, 199, the Plaintiff delegated the procedure for the registration of ownership transfer of the instant land to the Certified Judicial Scriveners E without cancelling the right to collateral security established in the name of the Korea Development Bank. On March 22, 1999, on the instant land, the ownership transfer registration was completed in the country, and on March 27, 199, KRW 77,167,500 was paid to D on March 27, 199.

C. Defendant’s request for disposition

On March 6, 2003, the Defendant notified the former Ministry of Construction and Transportation of the measures to preserve the right by cancelling the right to collateral security on the instant land. On January 9, 2004, C Regional Land Management Office requested the Korea Development Bank to cancel the right to collateral security, but the Korea Development Bank rejected such request by C Regional Land Management Office around January 26, 2004.

D. Loss of ownership to the land of this case by the State

1) H Co., Ltd. taking over claims against D and collateral security from Korea Development Bank

On August 22, 2005, the land of this case filed an application for voluntary auction to Gwangju District Court I for the Maritime District Court branch I for the instant land.

2) The Gwangju District Court rendered a decision to commence auction on September 1, 2005, and the J et al. completed the registration of ownership transfer in its name after receiving a successful bid on October 23, 2009 at the above voluntary auction procedure.

(e)an award;

On July 21, 2011, the Defendant did not cancel the right to collateral security established in the name of the Korea Development Bank on the instant land to the Plaintiff, and was grossly negligent in completing the registration of ownership transfer in the future of the State. The State lost its ownership due to the execution of the right

Since damage of KRW 77,167,50 occurred, Article 4(1) of the Act on Liability of Accounting Personnel, Etc. is liable for compensation to the Plaintiff pursuant to Article 4(1) of the Act on Liability of Accounting Personnel, Etc.; however, on March 31, 1999, the Plaintiff was determined to compensate the remainder of KRW 38,583,750 by reducing 1/2 of the above liability for compensation pursuant to Article 5(2) of the above Act, taking into account the following: (a) the Plaintiff was scheduled to voluntarily retire due to restructuring and thus, he faithfully performed his duties even before retirement; and (b) the Plaintiff was in charge of compensation of 10,000 parcels of construction works, and (c) the Plaintiff increased his duties

(f) a ruling on review;

On October 11, 2012, the plaintiff appealed to the original decision of this case and requested a retrial to the defendant. The defendant modified the original decision of this case by reducing 4/5 of the amount of liability for compensation stipulated in the original decision of this case to compensate the plaintiff 7,716,750 won to the plaintiff (hereinafter referred to as the "disposition of this case") by taking account of the fact that the defendant suffered damages to the State due to the plaintiff's gross negligence on October 1, 2012, although the voluntary retirement was scheduled due to restructuring and the mental difficulty was occurred in the process of faithfully performing his duties up to the time immediately before his retirement, even though there were many compensation lots, related civil petitions, and the plaintiff has served for 20 years or more without any specific error.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2, Gap evidence 4-1 and 4-2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

1) Absence of gross negligence

Although the Plaintiff did not cancel the right to collateral security established on the instant land and completed the registration of ownership transfer in the future of the State, and had D pay compensation of KRW 77,167,50,00, it was erroneous for the Plaintiff to do so. However, this is due to excessive business burden, and problems arising from D’s deception and business practice. Therefore, the Plaintiff did not make gross negligence.

2) Non-existence of damages

Article 10 of the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter the same) that provides that a property for which private rights have been created shall not be acquired as State property unless the said private rights have been extinguished. As such, the acquisition by consultation on the public land of this case by the State is null and void as it violates Article 10 of the former State Property Act. Ultimately, the State failed to acquire the ownership of the land of this case from the beginning, and therefore, the State’s loss of ownership of the land of this case cannot occur.

3) Non-existence of liability upon ratification

The acquisition of public land on the instant land between the State and D is a juristic act that may be cancelled by deception of D and mistake of C Local Land Management Office, or a juristic act that violates Article 10 of the former State Property Act and is null and void. The Defendant discovered this problem while conducting a fact-finding survey on State property in 2002, and subsequently ratified the said juristic act by asserting ownership of the instant land without asserting cancellation or nullity of the said juristic act. As such, the Plaintiff’s liability for compensation was extinguished.

4) The completion of extinctive prescription

'When damage occurs', which is the starting point of the statute of limitations for the liability of this case, is in violation of Article 10 of the former State Property Act, which is an effective provision, and even though the State did not acquire ownership of the land of this case, it shall be deemed as March 27, 1999 that paid D compensation of KRW 77,167,50, even though it did not acquire ownership of the land of this case. The judgment of the court below of this case was made five years after it, so the

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

1) As to the non-existence of gross negligence

In light of the purpose of the Act stipulated in Article 1 of the same Act and the fact that Article 3 of the same Act provides for the duty of loyalty of accounting personnel, etc. as one of the requisite elements for liability of accounting personnel, etc., whether the act constitutes a case of gross negligence as defined in Article 4 (1) of the Act on Liability of Accounting Personnel, etc., shall be determined based on whether the degree of violation of the duty of good faith can be judged as serious in light of the contents of the duty, by failing to comply with the provisions prescribed in Acts and subordinate statutes and other relevant regulations and budget to be followed in performing the duty of care, etc. (see Supreme Court Decision 93Nu98, Dec. 13, 1994).

In this case, the following circumstances, which are acknowledged as a whole by the pleading No. 4-2, namely, ① Article 10 of the former State Property Act provides that the property for which private rights have been created shall not be acquired as State property unless the said private rights have been extinguished; ② according to the documents of calculating compensation for land and consultation on compensation for losses as proposed by the Plaintiff, the registration of the register shall be included in the former non-document at the time of applying for compensation; ③ if a copy of donation, such as mortgage, provisional attachment, etc. is established due to precautions, it shall be cancelled in advance. ③ In full view of the fact that it can be easily confirmed that the Plaintiff had access to the land of this case before the Plaintiff delegated a certified judicial scrivener E with the registration of transfer of ownership of the land of this case, the right to collateral security was established in the name of the Korea Development Bank. As such, it is reasonable to view that the Plaintiff committed a mistake that caused damage to the State in violation of Article 10 of the former State Property Act by gross negligence in performing his duties.

2) As to the non-existence of damages

Article 10 of the former State Property Act is to ensure the proper acquisition of State property, and in light of the seller's warranty liability as stipulated in Articles 575 and 576 of the Civil Act, the act of violating Article 10 of the former State Property Act itself cannot be deemed to have a socially anti-sociality and anti-competence to the extent that it should not be denied even in its judicial effect, and the above provision shall not be construed as an effective provision since it cannot be seen to achieve the purpose of the State Property Act only if it is denied its judicial effect. Accordingly, the above assertion that the seafarer is a seafarer on a different premise is rejected.

3) As to the non-existence of liability following ratification

There is no evidence to prove that the acquisition of public land for the instant land between the State and D was made by the deception of D, and the acquisition of public land for the instant case by agreement is gross negligence on the part of the State as seen above, and thus cannot be revoked on the ground of mistake, and as seen earlier, the acquisition of public land for the instant land between the State and D cannot be a juristic act subject to ratification, since Article 10 of the former State Property Act does not fall under the provisions of validity. Accordingly, the aforementioned assertion by the Plaintiff on a different premise is rejected.

4) As to the claim for the completion of extinctive prescription

Article 96 (1) of the National Finance Act provides that "The right of the State to payment of money is the right of the State, which is the purpose of payment, unless otherwise provided for in other Acts, shall be extinguished by prescription if it is not exercised for five years." Thus, in case of liability for compensation of accounting personnel, the liability for compensation arises to "when damage is inflicted on the property of the State, etc." under Article 4 (1) of the Act on Liability of Accounting Personnel, etc., so the period of prescription

As seen earlier, since Article 10 of the former State Property Act does not apply to the instant case, damage suffered by the State is caused by the loss of the ownership of the instant land by the State, and since the State effectively acquired the ownership of the instant land, as long as the State had paid compensation to D on March 27, 1999, it cannot be deemed that the State had existed only under a conceptual and dynamic state and has yet to be realized. Such damage is ultimately deemed to have been realized on October 23, 2009, when the J et al. paid the auction price for the instant land in the Maritime Court of Gwangju District Court in full and completed the registration of transfer of ownership in its name. Accordingly, the statute of limitations for the Plaintiff’s liability for compensation was reached from that date, and thus, the Plaintiff’s claim that the Plaintiff’s liability for compensation was extinguished within five years from that date also cannot be accepted.

5) Sub-committee

Therefore, the defendant's disposition of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.