[1] In order for a land owned by an individual to have the effect of losing its ownership due to a land substitution plan authorized and publicly announced by a rearrangement project under the former Act on the Promotion of Rearrangement and Rearrangement of Agricultural Villages, whether the land within the rearrangement and rearrangement project zone should be included in the "land subject to land substitution" under the said land substitution plan (affirmative), and whether the individual "land substitution" in this case should be designated (negative)

[2] In a case where the executor of the compartmentalization and rearrangement project under the former Agricultural Community Modernization Promotion Act, without designating a substitute lot for private land and without paying the liquidation money, and thereby loses ownership of the land as a result of authorization and public notice of the plan, whether the landowner is liable to compensate for the damages incurred therefrom (affirmative)

[1] According to Article 2 subparagraph 1 (b), Article 127 (1) and (4), and Article 129 (1) of the former Agricultural Community Modernization Promotion Act (amended by Act No. 4118 of Apr. 1, 1989), "division adjustment" is one of the contents of farmland improvement projects. If deemed necessary after completion of farmland improvement projects, a farmland improvement project operator shall prepare a land substitution plan and obtain authorization from the Minister of Agriculture and Fisheries without delay. Where the Minister of Agriculture and Fisheries grants approval from the Minister of Agriculture and Fisheries, he/she shall publicly announce such fact without delay, and the land substitution to be issued through the publicly notified land substitution plan shall be deemed to be the previous land (hereinafter "land substitution plan") from the day following the date of public notice of the land substitution plan except for the case of Article 162 (1) of the same Act.

According to the relevant provisions and the language, structure, purport, etc. of Article 42(1) of the Urban Development Act, the rights existing in the previous land, which was not determined a replotting in the land substitution plan, shall be deemed extinguished on the day following the date when the land substitution plan is publicly announced. In order to make certain land owned by an individual lose its ownership by means of a land substitution plan, the said land shall be presumed to be included in the “land subject to a replotting” according to a land substitution disposition as the land within the rearrangement project zone. As long as the land substitution disposition becomes effective after the public announcement of the land substitution disposition, the effect of loss of ownership due to a land substitution disposition does not occur as to

[2] If a project implementer loses ownership of the land by formulating a land substitution plan and approving and publicly announcing a land substitution plan to the extent that it does not designate a substitute lot for private land and does not pay liquidation money, while implementing a compartmentalization and rearrangement project under the former Agricultural Community Modernization Promotion Act (amended by Act No. 4118 of Apr. 1, 1989), the project implementer is liable to compensate the landowner for damages caused by an illegal land substitution disposition. In such cases, the amount of damages to be compensated by the project implementer shall be deemed as the amount equivalent to the liquidation amount which is the compensation for the loss caused by the implementation of the compartmentalization and rearrangement project, and the right to claim damages shall expire from the date following the date of public announcement of the

[1] Articles 2 subparag. 1(b), 127(1) and (4), and 129(1) of the former Agricultural Community Modernization Promotion Act (amended by Act No. 4118 of Apr. 1, 1989); Article 42(1) of the Urban Development Act / [2] Articles 126, 127(1) and (4), and 129(1) and (4) of the former Agricultural Community Modernization Promotion Act (amended by Act No. 4118 of Apr. 1, 1989); Articles 166(1), 393, 750, 763, and 766(2) of the Civil Act

[1] Supreme Court Decision 2015Du3409 Decided January 28, 2016 / [2] Supreme Court en banc Decision 89Meu9552 Decided June 12, 1990 (Gong1990, 1450), Supreme Court Decision 97Da44539 Decided January 23, 1998 (Gong198Sang, 610)

Plaintiff (Law Firm Selection, Attorney Jeong Jong-chul, Counsel for plaintiff-appellant)

Pyeongtaek-si and one other (Law Firm Dog and one other, Counsel for the plaintiff-appellant)

Suwon District Court Decision 2017Na85931 decided July 10, 2018

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. A. According to subparagraph 1(b) of Article 2 of the former Agricultural Community Modernization Promotion Act (amended by Act No. 4118 of Apr. 1, 1989; hereinafter the same), Articles 127(1) and (4), and 129(1) of the same Act, "division rearrangement" is one of the contents of farmland improvement projects; when it is deemed necessary after the completion of construction of farmland improvement projects, the farmland improvement project operator shall prepare a land substitution plan and obtain authorization from the Minister of Agriculture and Fisheries without delay; when the Minister of Agriculture and Fisheries grants authorization, he/she shall publicly notify such fact without delay; and except for the case of Article 162(1) of the same Act, the land substitution to be granted under the publicly notified land substitution plan shall be deemed the previous land (hereinafter referred to as "land substitution plan") from the day following the date on which the land substitution plan is publicly notified (hereinafter referred to as "land substitution plan authorized and publicly notified under the above provisions").

According to the relevant provisions and the language, structure, purport, etc. of Article 42(1) of the Urban Development Act, the rights existing on the previous land, which was not determined a replotting in the land substitution plan, shall be deemed extinguished on the day following the date when the land substitution plan is publicly announced. In order to make certain land owned by an individual lose its ownership by means of a disposition of replotting and rearrangement project, such land shall be presumed to be included in the “land subject to a replotting disposition” according to a disposition of replotting (see, e.g., Supreme Court Decision 2015Du3409, Jan. 28, 2016). As long as a land substitution disposition becomes effective after a public announcement of land substitution disposition takes effect, the effect of loss of ownership due to a land substitution disposition does not arise only when an individual “land substitution” for a specific

B. If a project implementer loses ownership of the land by formulating, approving, and publicly announcing a land substitution plan with the purport of not designating a substitute lot for private land and not paying liquidation money in the course of implementing a compartmentalization and rearrangement project under the former Agricultural Community Modernization Promotion Act, the project implementer is liable for damages incurred to the landowner due to an illegal land substitution disposition. In such cases, the amount of damages to be paid by the project implementer shall be deemed as the amount equivalent to the liquidation amount, which is the compensation for losses, where the ownership of the land is lost due to the implementation of the compartmentalization and rearrangement project (see, e.g., Supreme Court en banc Decision 89Da9552, Jun. 12, 1990). The right to claim damages shall expire from the day following the date of public announcement of the land substitution disposition (see Supreme Court Decision 97Da4539, Jan. 23,

2. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

A. In around 1980, Pyeongtaek-si Partnership is a project implementer who implemented the “the instant land rearrangement project within the neighboring area” (hereinafter “instant land rearrangement project”) with the area of 467,533 square meters in the vicinity of Gyeonggi-gu, Gyeonggi-do under the former Agricultural Community Modernization Promotion Act. The Gyeonggi-do Governor approved and publicly notified the relevant land substitution plan on January 23, 1980 (hereinafter “instant land substitution plan”). As the instant land rearrangement project is completed, Pyeongtaek-gu head of Si/Gun closed the cadastral record of the land before the land substitution in the relevant project area and newly compiled the land cadastral record after the land substitution.

B. At the time of the implementation of the instant land rearrangement project, the land located within the area of the instant land rearrangement project, 198 square meters of land owned by Nonparty 1 ( Address 1 omitted) (hereinafter “instant land”). On October 30, 1978, the “inside map of the instant land” (No. 8), which was prepared by the Pyeongtaek Land Improvement Association around October 30, 1978 for the implementation of the instant land rearrangement project, was indicated as being a part of the said ( Address 2 omitted) land owned by Nonparty 2, not as an independent parcel separately partitioned, but as part of the said ( Address 2 omitted) 3,256 square meters.

C. Accordingly, in formulating a land substitution plan, Lyeong Farmland Improvement Association omitted matters concerning the designation of land substitution or the payment of liquidation money for the instant land in the course of formulating the land substitution plan. The instant land was omitted in the “written report of land substitution relocation”, and the cadastral record of the instant land was not closed, and the real estate register was not closed.

D. In the instant land substitution disposition, Pyeongtaek-si Partnership designated three lots, including the address 2 omitted) 3,256 square meters, which are owned by Nonparty 2, as “land substitution” and “( Address 3 omitted) 6,006 square meters after the land substitution.” In the cadastral map drawn up after the completion of the instant land substitution project, the land of this case is indicated as part of “( Address 3 omitted) 6,006 square meters after the land substitution.”

E. On August 28, 1992, the Plaintiff purchased the instant land from Nonparty 1, and completed the registration of ownership transfer by receipt No. 37792, Oct. 6, 1992, Suwon District Court members of Pyeongtaek-si, which received on Oct. 6, 1992. The head of Pyeongtaek-si confirmed the omission of closure of the cadastral record of the instant land despite the completion of the instant land rearrangement project, and described the phrase “land subject to revision of the registered matters” in the forest land register on February 23, 2016.

F. The “( Address 3 omitted) 6,006 square meters” was transferred from Nonparty 2 before the land substitution, and finally completing the registration of ownership transfer after purchasing a copy of a stock company around May 16, 2017. Around June 12, 2017, the process of dividing it into 21 lots was completed. Around that time, a construction project for constructing a single house is being implemented by obtaining a building permit from the head of Pyeongtaek-si.

3. Examining these facts in light of the relevant provisions and legal principles as seen earlier, the following determination may be made.

A. As a result of an incorrect survey, “the previous city map of the neighboring district” was erroneously prepared, Pyeongtaek Farmland Improvement Association, instead of an independent parcel of land, erred as part of “( Address 2 omitted) 3,256 square meters prior to the land substitution,” and omitted matters concerning the designation of land substitution or payment of liquidation money for the instant land while formulating a land substitution plan. As such, as illegal land substitution disposition was authorized and publicly announced on January 23, 1980, Nonparty 1 lost its ownership on the following day.

B. Since Pyeongtaek Dan Farmland Improvement Association lost ownership of the land of this case due to the illegal land substitution disposition of this case, it is obligated to compensate for the amount equivalent to the liquidation money of this case to the non-party 1. However, the right to claim damages against the non-party 1 for the right to claim damages against Pyeongtaek Dan Farmland Improvement Association from January 24, 1980 to January 24, 1990 when ten years have elapsed since the date of tort, and the statute of limitations expired from January 24, 1990.

C. The Plaintiff purchased the instant land from Nonparty 1 on August 28, 1992, but at that time, Nonparty 1 had already lost the ownership of the instant land at that time, and the real estate register of the instant land remains not closed due to a mistake or a mistake by a public official in charge. As such, even if the Plaintiff completed the registration of ownership transfer on October 6, 1992, it does not acquire the ownership of the instant land even if the Plaintiff completed the registration of ownership transfer on that ground, on the ground of “the sale and purchase of another’s right.” In addition, as long as the Plaintiff did not assert and prove that the sales contract was cancelled pursuant to Article 570 of the Civil Act on the ground of “the sale and purchase of another’s right,” and did not claim for the return of the purchase price against Nonparty 1, 200, it is difficult to directly recognize the right to claim damages against the Plaintiff

D. Therefore, the instant claim is without merit, premised on the Plaintiff’s loss of ownership of the instant land due to the instant land substitution disposition. Furthermore, on the premise that the Plaintiff is the owner of the instant land, Pyeongtaek-si entered the phrase “land subject to revision of the registered matters” in the forest land register on February 23, 2016, and the instant preliminary claim to the effect that, around 2017, the instant disposition issued a construction permit regarding “( Address 3 omitted) 6,006 square meters” where the instant land is located, constitutes a tort that infringes on the Plaintiff’s ownership.

4. The lower court dismissed all of the primary claim and conjunctive claim of this case on the premise that Nonparty 1 did not lose ownership due to the instant land substitution disposition, unless the instant land substitution disposition was designated in the instant land substitution disposition, and that the Plaintiff acquired the ownership of the instant land effectively by completing the registration of ownership transfer on October 6, 192 by purchasing it and completing the registration of ownership transfer on October 6, 192.

Although the lower court erred by misapprehending the legal doctrine regarding replotting disposition under the former Agricultural Community Modernization Promotion Act, it maintained the first instance judgment that dismissed all of the instant primary claims and conjunctive claims by dismissing the Plaintiff’s appeal, and thus, the lower court’s measure is ultimately justifiable, and the above error did not affect the conclusion of the judgment.

5. Therefore, all appeals are 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 on the bench.

Justices Kim Seon-soo (Presiding Justice)