Whether the State is negligent in the commencement of possession in cases where the State has completed the registration of real estate, the owner of which can be known separately, as a state-owned property through the procedures for the public announcement of non-owned real estate under Article 8 of the State Property Act,

In a case where the existence of the owner of a real estate is known, such as the existence of the owner on the register of real estate, even though the owner of such real estate is missing and thus his/her life or death is unknown, such real estate does not constitute a non-state real estate immediately. If the State completed the registration of real estate, the owner of which can be known, as State property, through the procedures for the announcement of non-state real estate pursuant to Article 8 of the State Property Act, and commenced possession thereof, it is negligent

Articles 252(2) and 245(2) of the Civil Act; Article 8 of the State Property Act

Supreme Court Decision 98Da59132 delivered on February 23, 1999 (Gong1999Sang, 551) Supreme Court Decision 2005Da12704 Delivered on June 23, 2005 (Gong2005Ha, 1007) Supreme Court Decision 2006Da4632 Delivered on April 28, 2006

Plaintiff

Korea

Supreme Court Decision 2007Da18058 Decided July 12, 2007

Ulsan District Court Decision 2007Na3070 decided May 29, 2008

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

The grounds of appeal are examined.

In the case of the acquisition by prescription of the registry, it is necessary that there was no negligence in the commencement of possession, and the burden of proof is the claimant, and the possessor is not negligent in believing that he is his own ownership (see Supreme Court Decision 2005Da12704 delivered on June 23, 2005, etc.).

Meanwhile, even if it is impossible to ascertain whether the owner of a real estate has died or has no heir, unless the procedure for reversion of the real estate to the State under Articles 1053 through 1058 of the Civil Act is not immediately reverted to the State, but it does not belong to the State. Unless the real estate is an unregistered real estate, it shall not belong to the State by undergoing the procedure for announcement of non-real estate under Article 8 of the State Property Act (see Supreme Court Decisions 98Da59132 delivered on February 23, 1999, Supreme Court Decisions 2002Da43417 delivered on May 26, 2005, Supreme Court Decisions 2006Da4632 delivered on April 28, 2006, etc.). Although Article 8 of the State Property Act provides for the procedure for acquisition of a non-owned real estate as State property, it does not affect the substance relationship between the registration procedure and the right in the cadastral record (see, e.g., Supreme Court Decision 997Da3994.

Therefore, in a case where the owner of a real estate becomes aware of the existence of a separate owner of the real estate, such as the existence of the owner on the registry, even though the owner is missing and the existence of the owner is unknown, such real estate does not constitute a real estate without fault. Thus, if the State completed the registration of a real estate, the owner of which is aware, as a state-owned property, through the procedures for the public announcement of real estate without fault under Article 8 of the State Property Act and commenced possession, it shall be deemed that there is negligence in believing

According to the fact-finding and records of the court below, as to the land of this case, the registration of ownership transfer has been completed on August 31, 194 under the name of 10, including the non-party, etc., on December 24, 1944. The defendant misleads that the land of this case is reverted property and completed the registration of ownership transfer under the name of the defendant on May 27, 1993 through the procedures for public notice of non-owned real estate ownership under the State Property Act (as of September 11, 1948), since the land of this case is not reverted property, it is true that the registration of ownership transfer under the name of the defendant is invalid as it does not fall under the reverted property, and as to the claim for the cancellation of the above ownership transfer registration which is invalid as the plaintiff's cause, the defendant raises a defense that the above registration conforms to the substantive relation due to the completion of the prescription of the acquisition

Examining the above circumstances in light of the legal principles as seen earlier, even if the Defendant knows that there is another owner on the registry of the land of this case, the land of this case constitutes a non-real estate and registered it as State-owned property and commenced possession through the procedures for public announcement of non-real estate. Thus, the Defendant was negligent in believing that it is one’s own ownership in the commencement of possession of the land

Nevertheless, the court below rejected the plaintiff's claim by accepting the defendant's defense of the prescription period for the acquisition of the defendant's registry on the ground that the defendant was not negligent in the commencement of the defendant's possession of the land of this case on the ground that the defendant had undergone the procedure for public announcement of non-real estate under the State Property Act. Such judgment of the court below

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)