[1] Whether land category was examined as a road at the time of the land survey project under the Japanese colonial Rule, but the lot number was not set, and the land which was registered in the land survey register or not registered on the land cadastre was national owned (affirmative)

[2] In order to complete the prescriptive acquisition of State property under the State Property Act, whether the State property shall be the general property that can continue to be subject to the prescriptive acquisition for the period of the prescriptive acquisition (affirmative), and whether the State property shall be deemed as the general property that can be the subject of the prescriptive acquisition immediately if it is in a state where the administrative property loses its function and is not provided for its original

[3] In a case where the land category on the cadastral level at the time of the land survey project under the Japanese colonial Rule was indicated as a road but the lot number was not set, and the land which was registered on the land survey register or not registered on the land cadastre was thereafter assigned a parcel number and was registered for preservation of ownership in the name of the State, the case holding that the land was an administrative property owned by the state as a national property, not only at the time of the forest survey project, but also at the time of its public abolition, which is not subject to prescriptive acquisition

[1] According to the relevant Acts and subordinate statutes at the time of the land survey project under the Japanese colonial Rule, the land category as at the time of the land survey project was examined as a road but the lot number was not set, and the land which was registered in the land survey register or not registered on the land cadastre was a state-owned property used as a road according to the current status at the time of the survey. The state-owned property under the Japanese colonial Rule prior to August 9, 1945 is naturally owned by the government of the Republic of Korea at the time of the establishment of the government of the Republic of Korea and the state

[2] Article 7(2) of the State Property Act provides that “Administrative property shall not be an object of prescriptive acquisition, notwithstanding Article 245 of the Civil Act,” so that the prescriptive acquisition of State property may be completed, it shall be a general property for which the State property may continue to be an object of prescriptive acquisition, not an administrative property, for the period of prescriptive acquisition. In addition, even in a state where administrative property has lost its function and is not provided for its original purpose, insofar as it is not disused by the relevant statutes, it does not necessarily constitute a general property subject to prescriptive acquisition, as long as it is not in a state where it is not provided for its original purpose due to its loss of function, and it cannot be deemed that there is an implied declaration of intention of permanent abolition solely on the basis that the declaration of

[3] In a case where the land category on the cadastral level at the time of the land survey project under the Japanese colonial Rule was indicated as a road but the lot number was not set, and the land which was registered on the land survey register or not registered on the land cadastre was thereafter assigned a parcel number and was registered for preservation of ownership in the name of the State, the case holding that the land was an administrative property not subject to prescriptive acquisition as a national property, not only at the time of the forest survey project but also at the time of its public closure

[1] Article 245 of the Civil Act, Article 2(1) of the former Decree on Land Survey (amended by Presidential Decree No. 2, No. 2, 1992), Articles 17 and 26 of the former Ordinance on Land Survey by Doctrine General, Doctrine (repealed by Presidential Decree No. 33, Jun. 13, 1913), Article 1(3) of the former Regulations on Land Survey by Doctrine (Abolition by Presidential Decree No. 45, May 2, 1914) / [2] Article 7(2) of the State Property Act, Article 245 of the Civil Act, Article 4(2) of the former State Property Act (amended by Presidential Decree No. 9401, Jan. 30, 209); Article 5(2) (see current Article 7(2)); Article 40(3) of the former Ordinance on Land Survey by Doctrine (see current Ordinance No. 1365, Dec. 16, 19, 2019)

[1] [2] Supreme Court Decision 2006Da11708 Decided December 10, 2009 / [2] Supreme Court Decision 2006Da19528 Decided December 10, 2009

Korean Non-interception Report ○○○ (Attorney Civil Semesters, Counsel for the defendant-appellant)

Korea

Suwon District Court Decision 2009Na28742 decided June 24, 2010

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

The grounds of appeal are examined.

According to the Decree on Land Survey (amended by Presidential Decree No. 2, No. 2, repealed of the Decree No. 1912, Aug. 13, 1912), the Regulations of the Inspection Bureau of the Shipbuilding General, the Inspection Bureau of the Provisional Land Survey Bureau of the Republic of Korea (repealed, No. 33, Jun. 13, 1913), land classification among 18 land categories is determined and the ground is surveyed and assigned in order to each Dong unit (the main sentence of Article 2(1) of the Decree on Land Survey, and Article 26 of the above Decree on Land Survey), land category was assigned to each building unit of the same Dong (the main sentence of Article 2(1) of the same Decree on Land Survey), land category was a road, river, ditch, bank, railroad, or water line, without setting a parcel number other than that belonging to the maintenance of the public (the proviso of Article 2(1) and 3 of the Decree on Land Survey, the proviso of Article 26 of the above Regulations on Land Survey), land cadastre No. 15, Article 15 of the former Regulations on Land Survey No. 15 (No. 194.

According to the relevant laws and regulations at the time of the land survey project under this Japan, the land category as at the time of the land survey project was examined as a road but the lot number was not set, and the land which was registered in the land survey register or not registered on the land cadastre was a state-owned property used as a road according to the present situation at the time. The state-owned property under the jurisdiction of the Joseon General prior to August 9, 1945 is naturally owned by the government of the Republic of Korea at the time of the establishment of the government of the Republic of Korea and the state-owned title (see Supreme Court Decision 2006Da11708, Dec. 10, 2009).

Furthermore, Article 7(2) of the State Property Act provides, “Administrative property shall not be an object of prescriptive acquisition, notwithstanding Article 245 of the Civil Act.” Thus, in order to complete the prescriptive acquisition of State property, the State property shall continue to be an object of prescriptive acquisition, not an administrative property, during the period of prescriptive acquisition (see, e.g., Supreme Court Decision 2006Da19528, Dec. 10, 2009). In addition, even in a state where administrative property has lost its function and is not provided for its original purpose, insofar as it does not fall under the category of general property subject to prescriptive acquisition, as long as it does not fall under disuse under the relevant Act and subordinate statutes, it cannot be deemed that there exists an implied declaration of intention of permanent abolition, solely on the basis that it is possible in an implied manner, but it is not provided for its original purpose (see, e.g., Supreme Court Decision 2006Da11708, supra).

According to the reasoning of the first instance judgment maintained by the lower court and the record, the Plaintiff: (a) had been unregistered, unregistered, without filing a report on ownership or being registered on the land survey book at the time of the Japanese land survey project; (b) the Defendant first registered the land category as a road on December 31, 197, and completed registration of preservation of ownership in the name of the Defendant on October 20, 195; and (c) the Plaintiff occupied the instant land as a site for inspection; and (d) the Plaintiff, on December 28, 1997, did not change the land category from the land survey book to the land survey book on December 8, 197; and (e) the Plaintiff did not know that the land category was changed to the land category of the instant land on the ground of the loss of functions on the instant land to the land survey site on December 12, 1997; and (e) the Plaintiff did not know that the land category was changed to the land category of the instant land on the previous road register or the land category was changed to the road category on May 3, etc.

In light of the above facts in light of the legal principles as seen earlier, it should be deemed that the instant land was an administrative property not subject to prescriptive acquisition, not only at the time of the forest survey project under the Japanese colonial Rule, but also at the time of the forest survey project under the Japanese colonial Rule before December 2, 1997.

Nevertheless, the court below determined that the period of prescriptive acquisition begins from December 31, 1976 and that the prescriptive acquisition has expired. The court below erred by misapprehending the legal principles on administrative property or prescriptive acquisition, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

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 Cha Han-sung (Presiding Justice)