Implied consent to free use of state land under public housing apartments

1. 01Question

   Where Seoul Metropolitan City obtained permission from the state to use state-owned land, built a public apartment block on it and sold the exclusive portions without leasing or selling the corresponding shares in the land or otherwise regulating the use of the land, are the buyers and those who took the exclusive portions from them in lawful possession, so that the Korea Asset Management Corporation cannot demand the return of unjust enrichment for their free use of the land?

2. 02Holding

   Likely not. Because the state permitted Seoul Metropolitan City to use and profit from the land so that it could build and sell public housing cheaply, the city's building of the apartments and sale to the first buyers is likely to carry consent to their possession and use of the land, and that consent is likely to reach those who later took the exclusive portions. The buyers are therefore likely to hold the land with a lawful title, and the court below was wrong to hold otherwise.

   Summary of the holding, verbatim

   서울특별시가 위 아파트를 신축하여 최초 수분양자들에게 분양하였을 때 수분양자들이 위 토지를 점유하고 사용·수익하는 것까지 승낙하였고 그러한 승낙의 효력은 최초 수분양자들로부터 위 아파트의 전유부분을 양수한 사람에게까지 미친다고 볼 여지가 크므로

   Unofficial English translation

   as there is a considerable likelihood that when Seoul Metropolitan Government constructed the said apartments and sold them to the initial purchasers, Seoul Metropolitan Government consented even to the purchasers' occupying and using and taking profits from the said land, and that the effect of such consent extends to persons who acquired the exclusive portions of the said apartments from the initial purchasers

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심판결을 파기하고, 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.

4. 04Form of the test

   Existing test applied Read from the decision

   위 아파트의 수분양자 갑 등은 위 토지를 정당한 권원에 의하여 점유하고 있어 한국자산관리공사에 대하여 부당이득반환의무를 부담한다고 보기 어려운데도, 이와 달리 본 원심판단에 법리오해의 잘못이 있다고 한 사례

   Unofficial English translation

   a case in which, although it is difficult to regard the purchasers of the said apartments, such as A, as owing a duty to make restitution for unjust enrichment to Korea Asset Management Corporation in that they are occupying the said land by virtue of lawful title, the determination of the court below, which held otherwise, was found to be erroneous as a misapprehension of legal principles

5. 05Factors

   • 서울특별시가 국유지에 대하여 국가로부터 사용허가를 받은 다음 그 지상에 공영주택인 아파트를 신축한 후 전유부분을 수분양자들에게 분양하면서
   • 위 토지 중 전유부분의 면적비율에 상응하는 지분을 수분양자들에게 임대·매각하거나 토지의 사용관계 등에 관하여 특별히 정하지도 않았는데
   • 국민의 주거생활의 안정과 공공복리의 증진에 기여하고자 하는 목적에서 국유지인 위 토지 위에 신축하여 분양한 것이고
   • 국가는 이를 위하여 서울특별시에 국유지인 위 토지에 관한 사용·수익을 허가하였는바
   • 그러한 승낙의 효력은 최초 수분양자들로부터 위 아파트의 전유부분을 양수한 사람에게까지 미친다고 볼 여지가 크므로

   Unofficial English translation

   • where Seoul Metropolitan Government obtained permission from the State to use state-owned land, constructed an apartment building, which is public housing, thereon, and then sold the exclusive portions to purchasers

   • without leasing or selling to the purchasers shares in the said land corresponding to the ratio of the area of the exclusive portions, or making any special provision regarding the use of the land or related matters

   • the apartments were constructed and sold on the said land, which is state-owned land, for the purpose of contributing to the stability of the people's housing life and the enhancement of public welfare

   • and the State, for this purpose, granted Seoul Metropolitan Government permission to use and take profits from the said land, which is state-owned land

   • as there is a considerable likelihood that the effect of such consent extends to persons who acquired the exclusive portions of the said apartments from the initial purchasers

6. 06Relation to precedent

   States a new standard Read from the decision

   서울특별시가 위 아파트를 신축하여 최초 수분양자들에게 분양하였을 때 수분양자들이 위 토지를 점유하고 사용·수익하는 것까지 승낙하였고

   Unofficial English translation

   when Seoul Metropolitan Government constructed the said apartments and sold them to the initial purchasers, Seoul Metropolitan Government consented even to the purchasers' occupying and using and taking profits from the said land, and

   Decisions referred to

   해당 본문 참조

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   What later conduct of the state is enough to show that the consent to free use of the land, given when the apartments were sold, had lapsed before the close of oral argument?

   The judgment of the Seoul High Court on remand in case 2019Na2021475, once it weighs the circumstances and decides whether the consent endured, would require this entry to be read again. So would an amendment to Article 741 of the Civil Act or to Article 2(iii) or Article 20 of the Act on Ownership and Management of Condominiums, and any later Supreme Court decision on implied consent to use state land.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.