(영문) 부산지방법원 2008.10.30.선고 2008가합12876 판결

(a) On the ship that connects each point of 10, 2, 11, and 10, among the real estate listed in the separate sheet, the points of 12, 13, 14, 15, and 12 in sequence among the real estate indicated in the separate sheet (1), the part of the ship, which connects each point of 8 square meters and 2 stories on the ground floor warehouse of 1st, 8 meters on the ground, 12, 13, 14, 15, and 12 on the ground surface, shall be 70 meters on the ground level, 16, 17, 18, 19, and 16 on the ground level, which connects each point of 65 meters on the ground level, 20, 21, 22, 23, and 20 on the ground surface, the part of the ship, which connects each point of 200 Dora-day, 71m, 24, 2008 meters on the ground level

B. It shall pay 3,645,60 won per month from August 1, 2008 and from August 1, 2008 to the delivery date of real estate listed in the separate sheet.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking account of Gap evidence 1, 2, 6, Eul evidence 1, Eul evidence 2-1, 2, Eul evidence 3 through 9, Eul evidence 10-1 through 11, Eul evidence 11-1 through 10, Eul evidence 12, and the whole purport of arguments as a result of the request for measurement and appraisal with respect to 000 appraisers by this court.

A. The real estate listed in the attached list of the instant land (hereinafter referred to as “instant land”) was originally public waters, but it was a place where illegal reclamation was completed in around 1995 and was actually landed by A, etc. who did not obtain a reclamation license from the authorities around 1989.

B. The defendant's possession

Since November 15, 1984, the Defendant was at the risk of removal of the shipbuilding yard building, etc. due to the land reclamation project in the Seo-gu, Seo-gu, Busan. On April 1, 1995, the Defendant registered the business with the trade name of Gangseo-gu, Busan repair and shipbuilding station (hereinafter referred to as "the shipbuilding yard in this case"). Of the land in this case, the Defendant continuously connected each point of subparagraph 10, 2, 11, 10 in the order of 8m, 12, 13, 14, 15, 12, 70m, 70m, 16, 17, 18, 19, 27m, 25m, 26m, 25m, 24m, 25m, 26m, 207, 24m, 25m, 3m, 25m, 3m, 24m, 207.

1) 피고는 2001. 7.경 부산 강서구청장에게 이 사건 토지 구역에 대한 지번부여 신청을 하였고, 강서구청장은 측량을 거쳐 이 사건 토지에 관하여 부산 강서구 명지동 XXXX 등의 가지번을 부여한 다음 2002. 3. 20. 이 사건 토지에 대하여 정당한 권리자가 6개월 이내에 권리신고를 하지 않으면 국유재산법 제8조 및 같은 법 시행령 제4조의 규정에 의하여 국가가 그 소유권을 취득한다는 내용의 무주부동산공고를 하였다.

2) The State, which did not report any right within the above period, classified the instant land as miscellaneous land on October 7, 2002 into the land cadastre, and completed the registration of new owner in the name of the State on December 11, 2003.

D. On March 2007, the Plaintiff’s country of acquisition of ownership issued an electronic bid notice for the sale of state property of this case in accordance with the State Property Management Plan in 2007, and concluded a sales contract with the Plaintiff on April 13, 2007 with respect to the instant land at KRW 1.419 billion, and completed the registration of ownership transfer on June 12, 2007.

E. Criminal punishment, imposition of indemnity, restoration order, etc. against the defendant

1) The Defendant occupied and used the instant land as the site of a shipbuilding yard, and was subject to criminal punishment on July 10, 1996 in violation of the Public Waters Management Act on January 10, 200; February 14, 200; 2) also imposed an imposition of State-owned occupation charges or order to reinstate State-owned occupation charges or miscellaneous property without permission on the basis of Article 10 of the Public Waters Management Act on the part of the Defendant from around 1996 to July 28, 2007, which is the management authority of the instant land and its neighboring public waters (the name was changed to the Busan Regional Maritime Affairs and Fisheries Office on May 24, 1997; 208, the name was changed to the Busan Regional Maritime Affairs and Fisheries Office on February 29, 208).

(f) relevant legal provisions;

1) The provisions of the former Public Waters Reclamation Act (amended by Act No. 8820 of Dec. 27, 2007) which was enforced by the State at the time of the completion of registration of initial ownership preservation with respect to the land of this case are as follows. Article 35 (Recovery) (1) A person who has obtained a reclamation license shall restore public waters in the execution zone of reclamation works where the reclamation license becomes null and void due to a cause attributable to himself/herself: Provided, That the Minister of Oceans and Fisheries or a Mayor/Do Governor may, upon the application of the reclamation licensee, exempt him/her from such obligation where he/she

(2) Where the Minister of Maritime Affairs and Fisheries or Mayors/Do Governors exempt any obligation pursuant to the proviso to paragraph (1), they may gratuitously own facilities or other things on public waters in the execution zone of reclamation works.

(3) The provisions of paragraph (2) shall apply mutatis mutandis where any public waters were reclaimed without a reclamation license or any application for obligation exemption referred to in the proviso of paragraph (1) is not filed within one year after the validity of the reclamation license expires.

2) The provisions of the former Public Waters Reclamation Act (amended by Act No. 5337 of Apr. 10, 1997) which was enforced in around 195 on the land of this case are as follows:

(2) Where the Minister of Construction and Transportation has exempted any obligation under the proviso of paragraph (1), he may have facilities and other things located on the public waters in the zone in which the reclamation works are executed, owned by the State.

(3) The provisions of the preceding two paragraphs shall apply mutatis mutandis to the case where any public waters are reclaimed without a license or the application for exemption from obligations referred to in the proviso of paragraph (1) is not made within one year after the license

G. As a result of the relevant lawsuit, the Defendant filed a lawsuit against the State for the return of unjust enrichment due to the reversion of the land in this case by Busan District Court Decision 2007Gahap8160, but was rendered a judgment against dismissal on January 30, 2008, and was also rendered a judgment against the lower court (Seoul High Court Decision 2008Na4346).

2. Determination as to the cause of action

According to the above facts of recognition, the plaintiff is presumed to be a lawful owner of the land of this case.

Unless there exist any circumstances, the defendant is obligated to remove the warehouse, house, Docraday, and toilet as stated in the paragraph (a) of the Disposition No. 1, and return unjust enrichment from occupying and using the land of this case to the plaintiff.

Furthermore, according to the public health department, the result of the commission of appraisal of the fees for expert witnesses 000 and the purport of the whole pleadings with respect to the scope of unjust enrichment that the Defendant has to return, the amount equivalent to the rent for the land of this case between June 12, 2007 and July 31, 2008, which is the date of acquisition of the Plaintiff’s ownership, shall be 47,786,960 won in total, and the amount equivalent to the rent for the month from August 1, 2008 to June 11, 2009 shall be recognized as constituting 3,645,600 won in total, and the amount equivalent to the rent for the period after the above period shall be ratified as its extent, barring any special circumstance. Thus, the amount of unjust enrichment that the Defendant has to return shall be 47,786,960 won in proportion to the amount of money to be returned from August 1, 2008 to the date of delivery of the land of this case.

3. Judgment on the defendant's assertion

A. The defendant's assertion

① The instant land is reclaimed by the Defendant and is owned by the Defendant, who is a non-licensed reclamation owner at the same time as the instant land. State-owned measures under the State Property Act, which is not the Public Waters Reclamation Act, are based on wrong laws and regulations, not only on the part of the State, but also on the part of the Plaintiff, which are erroneous lot numbers at the time of the public announcement by the head of Gangseo-gu, and did not properly abide by the procedures prescribed by the relevant Acts and subordinate statutes. As such, registration of ownership preservation in the name of the State for the instant land is null and void. ② Even if the public use of the original public water is not discontinued, the instant land is still in the nature of public land, which is an administrative property, under the law. It cannot be subject to judicial transactions. Also, according to Article 8(4) of the State Property Act, state-owned property acquired by the State as non-owned real estate as the instant land cannot be sold within ten years from the date of its acquisition, and thus, the sale contract between the State and the Plaintiff is null and void, therefore, the Plaintiff’s right to claim reimbursement and reimbursement of the instant land.

B. Determination

1) Whether the Defendant created the instant land

As seen earlier, it is recognized that the Defendant occupied and used the instant land from around 1995, but no further evidence exists to acknowledge whether the Defendant created the instant land by reclaiming public waters.

Therefore, under the premise that the Plaintiff created the instant land by reclaiming public waters, ① part of the Defendant’s assertion and ③ the assertion are without merit. Under the premise that the Defendant created the instant land as the Defendant’s assertion, I will further examine the Defendant’s argument.

2) Judgment as to the Defendant’s assertion

A) Pursuant to the former Public Waters Reclamation Act, prior to whether the instant land belongs to the Defendant at the same time as the reclamation of public waters, a person who buried public waters without a license bears the obligation to restore it to the original state; Provided, That where it is impossible to restore it to the original state or there is a ground prescribed by Presidential Decree (Article 32 of the Enforcement Decree of the Public Waters Reclamation Act that does not interfere with the preservation, use and management of public waters) (Article 32 of the Enforcement Decree of the Public Waters Reclamation Act) and the reclamation is exempt from the said obligation, the State shall apply for exemption from the duty to restore to the original state and the State shall gratuitously acquire the ownership of facilities or goods on public waters through the procedures such as notification or public announcement. In this case, it is reasonable to deem that the time when the State acquires the ownership is exempted from

However, as so-called natural public waters are provided directly for public use, and even if part of the public waters were actually reclaimed by the State, they still possess the nature of public waters as long as they do not abolish them as public waters, so long as they do not become the object of judicial transactions unless they are abolished for public use, it cannot be viewed that there was an expression of intent to abolish the public waters by the office of administration solely on the fact that administrative property is in a state where it is not provided for its original purpose (see Supreme Court Decision 95Da52383, May 28, 1996).

Therefore, although the plaintiff created the land of this case by illegally reclaiming public waters without a license, unless the original public waters are abolished, the plaintiff is obligated to restore the land of this case pursuant to the Public Waters Reclamation Act, and in any case, it cannot acquire the land of this case. Even if the original public waters have been abolished after the illegal reclamation, the defendant cannot acquire the ownership of the land of this case unless he asserts or proves that the acquisition by prescription has been made. Thus, the defendant's assertion on this part is without merit.

B) Whether the acquisition of ownership by the State is null and void

In full view of the purport of the entire arguments in the above evidence, the land (natural reclaimed land) formed by natural phenomena, such as deposited land erosion, etc. on April 11, 2000 from the Ministry of Oceans and Fisheries (the Ministry of Land, Transport and Maritime Affairs, which was integrated into the Ministry of Land, Transport and Maritime Affairs on February 29, 2008) shall be nationalized as non-major real estate pursuant to Article 8 of the State Property Act, and illegal reclaimed land, etc. shall be, in principle, nationalized pursuant to Article 35 of the Public Waters Reclamation Act, if the obligation of restoration is exempted, but nationalized pursuant to Article 35 of the Public Waters Reclamation Act. The fact that the State did not exempt the Defendant from the obligation of restoration; the head of Gangseo-gu Busan Metropolitan Government did not make a public announcement under Article 8 of the State Property Act on the land of this case in the Official Gazette as of March 20, 2002, but the lot number of the land of this case was indicated at the time of surveying by 1498-10 each fact.

Furthermore, the following circumstances are acknowledged with respect to whether the State acquires the land of this case which is an illegal reclaimed land in accordance with the procedure stipulated in Article 8 of the State Property Act is null and void, and the purport of the entire pleadings, i.e., the Defendant did not apply for exemption from the duty to restore the land of this case to the original state, and rather, the Defendant requested the State to leave the land of this case on the ground that it is a person holding the right to do so even after the completion of registration of ownership preservation in its name. ② If Article 33 of the Enforcement Decree of the Public Waters Reclamation Act intends to transfer the land of this case to the State without any authority to the State pursuant to the provisions of Article 35(2) of the Act (including the case where it is applied mutatis mutandis under the provisions of paragraph (3)), the State Property Act provides that the State shall notify the owner of the relevant land of its location, quantity, time, and other necessary matters for the acquisition of the land of this case to the State without any authority within the period of two days or more, as stipulated in the provisions of the State Property Act.

Therefore, this part of the defendant's assertion is without merit.

3) Judgment on the Defendant’s assertion

A) Whether public waters are discontinued for public use

Since administrative property can not be a subject of private transaction unless it is closed for public use, even if the administrative agency has sold the administrative property without knowing it, the sale is null and void as it is alleged by the defendant. However, the administrative agency's expression of intent to abolish the administrative property in addition to the express expression of intent and the lawful expression of intent is void (see Supreme Court Decision 95Da52383, supra).

As seen earlier, ① the State considers the land of this case as non-real estate and reverted to the State under the provisions of Article 8 of the State Property Act on October 7, 2002, and completed the registration of a new owner in the name of the State on December 11, 2003. ② The State considers the land of this case as state-owned miscellaneous property after October 2005 and imposes indemnity on the Defendant for the use of state-owned miscellaneous property without permission. ③ The State considers the land of this case as miscellaneous property of State-owned miscellaneous property of this case on March 13, 2007 and paid a public notice of sale of state-owned miscellaneous property of this case on April 13, 2007. Since the State concluded a sales contract with the Plaintiff on June 12, 2007 and completed the registration of ownership transfer on the Plaintiff’s land of this case on June 12, 2007, it is recognized that the State made an indirect public notice of sale of public waters under the provisions of Article 105 of the State Property Act.

Therefore, this part of the defendant's assertion is without merit.

B) Whether the 10-year prohibition of disposition has been violated

According to Article 8(4) of the State Property Act, the State property acquired by the State in accordance with the regulations on disposal of unregistered real estate shall not be disposed of for ten years from the date of its acquisition except for the case where there is a special reason as prescribed by the Presidential Decree. Article 4(3) of the Enforcement Decree of the State Property Act lists "1. Where the State property concerned becomes necessary for the public works under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, it is necessary for the public works under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor."

However, in this case, the state made an electronic public notice of sale of state property on March 2007 according to the state property administration plan in 2007 pursuant to Article 12 of the above Act. Thus, this constitutes an exception to the prohibition of disposal under Article 4 (3) 2 of the Enforcement Decree of the above Act. Thus, the defendant's assertion in this part is without merit.

4) Judgment on the Defendant’s assertion

At first, the preservation, use, and management of public waters is conducted as part of the national land management of the State, and in particular directly linked to the environmental issues such as the prevention and mitigation of pollution, such reclamation as well as preservation, use, and management of public waters is subject to strict regulation under the Act. The Act stipulates that reclamation without a license is a criminal act subject to criminal punishment, and that reclamation without a license is created due to such illegal act, and therefore leaving it unattended results in hindering the above important public interest related to the preservation, use, and management of public waters.

Therefore, in principle, reclamation without a license is required to restore it to its original state. However, in such a case, considering that it would dance the duty to restore it to its original state or that it would not be desirable to do so, it is stipulated that the state can revert to its original state because it might not achieve the public interest purpose that would be achieved by strictly managing public waters if it is held without a license to restore it to its original state (see Supreme Court Decision 97Da51216, Apr. 24, 1998). When such duty to restore is exempted, the State can nationalize facilities or other things within the reclamation work area where the non-licenser executes such duty to restore to its original state. However, in comparison with the expenses to be disbursed for its original state to restore to its original state or the value of soil and sand to be collected by it, the State is exempt from the duty to restore to its original state (see Supreme Court Decision 200Da51216, Apr. 24, 1998).

However, as seen earlier, since the Defendant did not intend to reinstate the instant land, it cannot be deemed that the State did not impose the duty to restore the instant land to the Defendant and acquired the ownership of the instant land by deeming the instant land as a non-real estate. Ultimately, the Defendant who created the instant land by reclaiming public waters without a license bears the duty to restore it to the original state in accordance with the above provisions, and there is no authority to do so on the instant land. Thus, it cannot be deemed that there is no legal ground for the State to have acquired the ownership of the instant land, and therefore, even though the State is a state-owned measure to nationalize the instant land.

Even if a person gets de facto profits by taking advantage of the pertinent land, such profits cannot be deemed as having no legal basis (see, e.g., Supreme Court Decision 96Da13903, Jun. 28, 1996). Thus, neither a return relationship between the Defendant and the former owner of the instant land is established.

Therefore, the defendant, who is unable to claim any right against the State, cannot be deemed to have the right to claim reimbursement for the cost of reclamation works, which are beneficial to the plaintiff who purchased the land of this case in the process of creating the land of this case ( even if the defendant has the right to claim reimbursement for beneficial to the land of this case, since the defendant's possession of the land of this case is deemed to be a tort, the defendant's right to claim reimbursement for beneficial to the land of this case shall not be asserted for the establishment of the right

4. Conclusion

Therefore, the defendant is obligated to remove the warehouse, house, Docrail, and toilet as stated in the Disposition No. 1-A, and pay to the plaintiff the amount at the rate of KRW 3,645,60 per month from August 1, 2008 to the delivery date of the land of this case. Thus, the plaintiff's claim of this case is justified and it is so decided as per Disposition.