2018Gahap21858 Registration of transfer of ownership

Ulsan Metropolitan City

A Stock Company

December 20, 2018

January 24, 2019

1. The plaintiff's main claim is dismissed.

2. On August 18, 2017, the Defendant shall implement the registration procedure for transfer of ownership on each land listed in the separate sheet to the Plaintiff.

3. The costs of lawsuit shall be borne by the defendant.

In the first place, the defendant shall execute the procedure for the registration of ownership transfer on October 14, 1974 with respect to each land listed in the separate sheet to the plaintiff. This is preliminary, as set forth in paragraph (2) of this Article.

1. Facts of recognition;

A. Status of the parties

B (hereinafter referred to as "B") was merged with C on August 2, 1976, and became D (hereinafter referred to as "D") a stock company (the trade name of June 1, 1995 was changed to C; hereinafter referred to as "D"), and D was merged with A (hereinafter referred to as "A") on December 2, 2002, and A became the defendant after being merged with E on September 1, 2015.

(b) Establishment of the F and construction of G Highway;

1) On February 28, 1969, B established the F Co., Ltd. (hereinafter referred to as “F”), a subsidiary, for the purpose of managing and operating the main facilities of the social overhead capital, such as real estate sale, housing site preparation, housing construction and toll roads.

2) On May 26, 1969, the Korea Expressway Corporation submitted a plan for the construction project of G Highway to the Minister of Construction and Transportation [longing 16.5cm, 22.4cm, and 1.6 billion won project cost, and the Ministry of Construction and Transportation held meetings on the inducement of private investment in which B and F participated, etc. on June 1969 and consulted about financing plan.

3) Article 12 of the former Toll Road Act (amended by Act No. 2189, Jan. 1, 1970) (amended by Act No. 2189, Jan. 1, 1970) was permitted by the Minister of Construction on June 19, 1969 to build a new G charged highway. Around that time, the said new construction was commenced and approved for use on December 29, 1969 (hereinafter referred to as the “J Highway” for the section 14.3 km from the 15.7 km of the G Highway to the Roterri, and the section 1.4 km from the Roterri to the Kg., the two main roads from the Roterri to the Kg., and the two main roads from the J Highway to the Kg are referred to as the “private road”).

4) Meanwhile, F purchased each land listed in the separate sheet to be incorporated into access roads (hereinafter “each land of this case”) while opening the public-private partnership road of this case, and completed the registration of ownership transfer as to each land of this case.

C. Progress of consultation on the management plan of the public-private partnership road in this case

1) As F’s loss was accumulated by investing the high interest trust assets in infrastructure without profitability (private roads, L tunnels, and M tunnels), the Ministry of Finance and Economy, construction division, Seoul Special Metropolitan City, the Korea Highway Corporation, B, and F, which are related agencies, discussed measures to dispose of the private roads, etc. of this case from August 1, 1971.

2) A provisional conclusion was made on August 12, 1974, which held on the improvement of the F operation in the presence of the Vice Minister of Economic Planning and Planning, the Vice Minister of Finance, the Vice Minister of Construction, the Vice Minister of Construction, the Vice Minister of Seoul Metropolitan Government, the Vice President of the Korea Highway Corporation, the President of B, the Prime Minister’s planning and management office, and the Chief Secretary of the Blue Economic Affairs, which held on August 12, 1974.

3) On September 7, 1974, the Secretary of the Ministry of Finance and Economy prepared a report that the above provisional conclusion is reflected and approved by the President, and on September 11, 1974, the Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Office of Secretary of the Ministry of Finance and Economy (the Secretary of the Ministry of Finance, the Minister of Construction, Seoul Special Metropolitan City, the Secretary of the Office of Administrative Coordination, the President of the Korea Highway, and the President of the Office of Secretary of the Ministry of Finance and Economy shall take measures immediately under his jurisdiction, and the Minister

4) The related agencies related to the instant public-private partnership roads have consulted about the acquisition and transfer system of the said public-private partnership roads from September 14, 1974 to October 14, 1974. In relation to the results of the consultation, the related agencies related to the instant public-private partnership roads and the Korea Highway Corporation prepared by the Construction and the Korea Highway Corporation, as follows:

The main contents of the agreement on the acquisition of the privately financed road of this case are to be determined as of November 1, 1974 and to complete all necessary measures until November 1, 1974. Among the privately financed roads of this case, the access road of this case shall be transferred to the plaintiff in the form of donation by B. Among the privately financed roads of this case, it is to actively cooperate with the President of the Korea Highway Corporation and the President of the Korea Highway Corporation in the minutes of the acquisition of the privately financed road of this case under the instruction letter. However, since the access road problem is not an expressway according to the instruction letter, but is not an urban planning road of the plaintiff, it is difficult to manage the road in the future. Also, since the Road Act also takes charge of the city road of this case, it is appropriate to make a contribution to the plaintiff as of November 1, 1974 through internal consultation with the plaintiff, and thus, it is reasonable to meet the initial obligation of the Korea Highway Corporation to make a contribution to the plaintiff or to make a mutual cooperation between the plaintiff and the Korea Highway Corporation to meet the initial obligation of the approach.

5) On October 25, 1974, the Korea Expressway Corporation entered into a contract for transfer from F to F to take over all facilities and fixtures attached thereto at a fixed speed and at a 2,855,722,688 won. The above transfer price reflects the principal and interest on investment in J Expressway and the amount equivalent to 1/2 of the principal and interest on investment in the access road of this case.

6) On November 9, 1974, F entered into a succession contract with the Korea Highway Corporation and the Seoul Special Metropolitan City under which F will transfer F’s assets to B at the same amount as that of transfer or acquisition under each transfer or acquisition contract with B, but B will succeed to rights and obligations under each transfer or acquisition contract, and the remaining assets and liabilities, and completed the liquidation registration on October 8, 1975 upon receiving a ruling of bankruptcy or discontinuation of bankruptcy.

D. Possession and possession of each of the instant lands

1) D filed a lawsuit against F (Seoul District Court 97Dahap23377) seeking the implementation of the procedure for the registration of ownership transfer on each of the instant land based on the instant succession contract, and rendered a favorable judgment (so doing) on June 10, 1997, and completed the registration of ownership transfer on August 18, 197.

2) On February 19, 1975, the Plaintiff transferred F’s duties of managing entry roads according to a decision of the Minister of Construction and Transportation on February 19, 1975, and thereafter occupied each of the instant land.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 14 (including provisional number; hereinafter the same shall apply) and the purport of whole pleadings

2. Judgment as to the main claim

A. The plaintiff's assertion

B On October 14, 1974, between the Korea Highway Corporation, etc., the Korea Expressway Corporation, etc. agreed that “B shall not take over the access road, but pay 1/2 of the principal and interest on investment of the access road to B, and transfer the access road to B in the form of donation.” Since the Plaintiff implicitly expressed his intention of profit by occupying and managing the access road from that time, the Defendant, a universal successor, is liable to implement the registration procedure for ownership transfer on the ground of an agreement made on October 14, 1974, to the Plaintiff.

B. Determination

In this case, from September 14, 1974 to October 14, 1974, the agency related to the public-private partnership road of this case consulted with the acquisition system of the above public-private partnership road of this case. The minutes of October 14, 1974 prepared by the construction division are the major contents of the agreement. The acquisition time of the public-private partnership road of this case shall be determined as of November 1, 1974, and all necessary measures shall be completed until October 25, 1974. The entry road of this case shall be transferred to the plaintiff in the form of donation. The entry road of this case shall be transferred to the plaintiff in Korea with the national highway of this case. In accordance with the consultation with the related agency on October 25, 1974, the Corporation concluded a contract for acquisition of the principal and interest of the public-private partnership road of this case from the F to the acquisition date of the above public-private partnership road of 2,85,7268 won.

However, according to the following circumstances, which are acknowledged in addition to the purport of the entire arguments, i.e., the following circumstances, i., (i) the F made a statement to the Korea Highway Corporation to the effect that, according to the result of the meetings held on October 14, 1974, the Seoul Metropolitan Government and the Korea Expressway Corporation concluded each transfer or acquisition contract on the land of J Highway, and (ii) the objective disposal document, such as the transfer or acquisition contract on the land of each of the instant land belonging to the access road site, appears not to have been prepared. (ii) According to the minutes of October 14, 1974, the construction secretary made a statement to the effect that the Plaintiff cooperate with the Korea Expressway Corporation while presenting the plan to contribute access road to the Plaintiff, and the head of B made a statement to the effect that “B would resolve the relation between the access road and the Plaintiff” to mutually cooperate with the Plaintiff, and it is difficult to conclude that the agreement was made on the premise that B had no further been established between the Plaintiff and the related agencies on the land of this case.

3. Judgment on the conjunctive claim

A. Determination on the cause of the claim

On February 19, 1975, the Plaintiff commenced possession of each land of this case as the managing authority of access roads according to the urban planning (change) decision of the Construction Division from February 19, 1975. The Plaintiff’s possession was completed even if the period of 20 years elapsed since August 18, 1997 when the ownership transfer registration was completed in the D’s future with respect to each land of this case, as seen earlier. Meanwhile, the Plaintiff’s possession of each land of this case is presumed to have been carried out in peace and public performance with his intention to own pursuant to Article 197(1) of the Civil Act. As such, the prescriptive prescription for each land of this case of this case was completed on August 18, 2017 after 20 years have passed since the date the ownership transfer registration was completed.

Therefore, the defendant, who is a general successor of D, is obligated to implement the registration procedure for transfer of ownership on each land of this case to the plaintiff, except in extenuating circumstances.

B. Judgment on the defendant's argument

1) The Defendant asserts that the Plaintiff’s possession of each of the instant lands is the possession of a third party, and thus, examined.

2) If the nature of the source of possessory right of real estate is not clear, the possessor is presumed to have occupied the real estate in good faith, peace, and public performance with his/her own intent pursuant to Article 197(1) of the Civil Act, and such presumption applies likewise to cases where the State or a local government occupies the real estate, which is the managing body of the cadastral record, with the knowledge of the absence of such legal requirements as to the acquisition of ownership at the time of the commencement of possession without permission, barring special circumstances, the possessor shall be deemed not to have the intention to reject another’s ownership and to hold it. Thus, the presumption of possession with the intention to own is broken. However, even if a local government or a local government fails to submit documents concerning the procedure for acquiring land for the completion of the acquisition of acquisition by prescription, it is difficult to see that the State or a local government can not be ruled that it lawfully acquired the ownership by following the procedure for acquiring the real estate for public use at the time of the commencement of possession without the legal requirements of the acquisition of ownership (see, e.g., Supreme Court Decision 2007Da16868.

3) According to the statements in Eul evidence Nos. 1 through 6, the defendant sent a public notice to the Ulsan Metropolitan City Mayor on Feb. 15, 2006 that requested the Korea Highway Corporation to obtain compensation for the land of this case, and the head of Ulsan Metropolitan City comprehensive construction division on Dec. 5, 2008 that the defendant's land of this case in the name of the defendant in the name of "Korea Highway Corporation" on Oct. 1, 1974 pursuant to the "F Adjustments and B's plan for horizontalization of designation", the defendant requested the Korea Highway Corporation to obtain compensation for the land of this case on Oct. 1, 1974, since the ownership of the access road was not yet adjusted after acquiring the public road of this case, it is recognized that the defendant requested the Korea Highway Corporation to obtain compensation for the land of this case on Oct. 1, 2006. 20, the defendant posted the notice of the public notice to the Korea Highway Corporation to purchase the land of this case on Feb. 19, 2018.

4) However, even if it is difficult to view that the agreement between the related agencies at the time of the above conference held on October 14, 1974 that B would contribute each of the instant land to the Plaintiff, as seen in the following circumstances, including the purport of the entire pleadings, it cannot be deemed that the Plaintiff’s possession was occupied by the Plaintiff, or that the presumption of autonomous possession was reversed. ② The head of the Ulsan Metropolitan City Construction Headquarters did not request compensation for each of the instant land after the lapse of 30 years from the conference on October 14, 1974, and the pertinent authorities did not have completed the procedure of acquiring the ownership of each of the instant land from September 14, 1974 to October 14, 1974, the Plaintiff did not have completed the procedure of acquiring the ownership of each of the instant land by acquiring the ownership of each of the instant land from the Korea Highway Corporation for the purpose of acquiring the ownership of each of the instant land from 17 years to 19 years prior to the conclusion of the agreement.

Conclusion

Therefore, the plaintiff's primary claim is dismissed as it is without merit, and the conjunctive claim is accepted as it is decided as per Disposition.

The presiding judge, Gimnam Judge

Judges Song Jae-chul

Judges Kim Gin-jin

1) If the Minister of Construction and Transportation did not decide on a change in the urban planning, the access road part is the former Toll Road Act (Law No. 3072, 3072);

Pursuant to Articles 12(2) and 11(3) of the Act of December 31, 1977, F for the maintenance, repair and management thereof.

must bear the obligations.

A person shall be appointed.