[1] Whether the acquisition by prescription of State property under the former State Property Act shall be a miscellaneous property that can continue to be subject to acquisition by prescription during the period of the acquisition by prescription (affirmative)

[2] Whether the administrative property or conservation property is not used for its original purpose, or the administrative entity has lost its possession, or there is an implied disuse with an invalid selling act (negative)

[1] Article 245(1) of the Civil Act, Article 5(2) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009) (see current Article 7(2)), Article 288 of the Civil Procedure Act / [2] Article 245(1) of the Civil Act, Article 5(2) of the former State Property Act (wholly amended by Act No. 9401 of Jan. 30, 2009), Article 30(1) (see current Article 40(1)) of the former State Property Act

[1] [2] Supreme Court Decision 2003Da29890 Delivered on October 9, 2003 / [2] Supreme Court Decision 83Meu181 Delivered on June 14, 1983 (Gong1983, 1082) Supreme Court Decision 93Da42658 Delivered on April 28, 1995 (Gong195Sang, 1955Sang, 1955) Supreme Court Decision 95Da37681 Delivered on December 10, 1996 (Gong197Sang, 298)

Korea

Defendant Co., Ltd. (Attorney Kim Hyun-soo et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2005Na424 Decided February 3, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether Nonparty 1 purchased the forest land of this case by borrowing the name of Nonparty 2

The selection of evidence and the recognition of facts are within the discretionary power of a fact-finding court unless there are special circumstances such as violation of the principle of free evaluation of evidence (see Supreme Court Decision 2008Da34828, Mar. 26, 2009, etc.).

In light of the records, the judgment of the court below on the grounds for the purchase of the forest of this case by Nonparty 1 is not erroneous, such as misconception of facts against the rules of evidence as alleged in the grounds for appeal. This part of the grounds for appeal cannot be accepted.

2. As to whether the forest of this case is a miscellaneous property under the former State Property Act (wholly amended by Act No. 9401, Jan. 30, 2009; hereinafter “former State Property Act”), which is subject to prescriptive acquisition

A. Article 5(2) of the former State Property Act provides that “State property shall not be subject to the prescriptive acquisition, notwithstanding the provisions of Article 245 of the Civil Act: Provided, That this shall not apply to miscellaneous property.” Thus, in order to complete the prescriptive acquisition for state property, the state property shall be a miscellaneous property for which the prescriptive acquisition may continue during the period of the prescriptive acquisition, and the burden of proof on this point shall be borne by the person who asserts the prescriptive acquisition (see Supreme Court Decision 2003Da29890, Oct. 9, 2003).

The court below rejected the defendant's assertion that the forest of this case was miscellaneous property at the time when the contract for the sale of the forest of this case was concluded between the plaintiff and the non-party 1, because it is difficult to believe that the forest of this case was miscellaneous property or that the forest of this case was miscellaneous property for the period from October 20 to October 20, 192, and there is no other evidence to acknowledge this, and rather, according to the employment evidence, the forest of this case was miscellaneous property for the period from October 20 to October 20, 192 without any change in the type of property classification before or after May 1, 198.

Since such judgment of the court below is in accordance with the legal principles as seen earlier, it cannot be deemed that there was an error in the misapprehension of legal principles as to the acquisition of prescription for state property, and also in light of the records, the court below's above fact-finding of the court below

This part of the grounds for appeal is not accepted.

B. The expression of intent for the abolition of public use is either explicitly or implicitly, but there is a legitimate declaration of intention. It cannot be deemed that there was an implied discontinuance of public use with the reason that the administrative property or conservation property is not actually used for its original purpose or that it was lost by the administrative body or with an invalid sale act (see, e.g., Supreme Court Decisions 83Meu181, Jun. 14, 1983; 2003Da29890, Oct. 9, 2003).

The record reveals the following facts: (a) the amendment of Article 34(1) of the former Forestry Act (wholly amended by Act No. 3232, Jan. 1, 1970) (wholly amended by Act No. 3232, Jan. 4, 1980) had the authority to manage and dispose of state forests; and (b) the forest land of this case managed by the Commissioner of the Korea Forest Service under the previous State Property Act was transferred to the Korea Forest Service by the National Tax Service on June 2, 1971.

Examining the above circumstances in light of the legal principles as seen earlier, even if the director of the maritime tax office, who did not have the authority to dispose of the forest of this case at the time of selling the forest of this case, sold the forest of this case as miscellaneous property after the public notice of tender, such act of disposal of state forest of this case cannot be deemed as an expression of implied public disuse on the conservation property. In addition, it cannot be deemed that there was an implied public disuse on the forest of this case merely because the fact that the defendant occupied the forest of this case for a long time was left unattended by the management authority of the forest of this case. Therefore, as alleged in the ground of appeal, the judgment below did not err in the misapprehension of legal principles as to mistake of facts

This part of the grounds of appeal cannot be accepted.

3. As to the remaining grounds of appeal

The Defendant’s attorney’s assertion that the forest of this case became miscellaneous property due to the management exchange decision made by the National Tax Service with the acquisition management office on May 7, 1991, and that the forest of this case was acquired by prescription by occupying the register in peace and public performance as the intention owned for at least ten years after the registration was made thereafter, is the first asserted in the final appeal, and thus, cannot be a legitimate ground for final appeal.

In addition, the defendant's legal representative may not oppose the third party acting in good faith, and there is no evidence to support that the defendant purchased the forest land of this case with the knowledge of the evasion of the law, and there is an error of law by misunderstanding the legal principle of nullity of legal act, and misunderstanding the legal principle of nullity of legal act, and Secondly, the act that the director of the tax office affiliated with the plaintiff permits the change of the purchaser's name as to the forest of this case upon the defendant's application by the defendant is reasonable to deem that the plaintiff ratified the sale contract between the non-party 2 or entered into a new sales contract with the defendant. Thus, the court below erred by misapprehending the legal principle of ratification of nullity of invalidation act, and it is presumed that the forest of this case was sold as miscellaneous property in accordance with the legal principle of presumption

However, each of the above arguments by the attorneys is not a ground of appeal as stated in the appellate brief submitted prior to the expiration of the submission period, but it was first presented in the supplemental appellate brief dated June 13, 2006 and the supplementary appellate brief dated March 11, 2008, and it is not a supplement to the original grounds of appeal or ex officio examination. Thus, it cannot be a legitimate ground of appeal.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul (Presiding Justice)