「지적재조사에 관한 특별법」에 관한 일고찰 - 경계확정에 수반되는 제문제를 중심으로 -

Abstract

From 1913 to 1918, the land survey project was conducted with Tokyo Datum as the surveying origin. However, since then, due to incorrect cadastral data caused by loss of surveying control points, stretch, wear and damage of paper cadastral maps and unlisted national lands on the cadastral records, disputes between owners for lands have frequently been occurred and the social and economic costs such as delay of land development projects have been increasing. Above all, existing cadastral maps based on the graphical boundaries established by poor graphical surveying could be used controlling references for cadastrally discrepant lands afterhand, but for they could not be used to proactively cope with situations that cadastrally discrepant lands are generated, they are limited on fundamental prevention of legal dispute possibilities. Therefore, desperately needed is renovation of cadastre that re-registers lands to cadastral records by nationwide cadastral resurvey. To cope with such needs, on September 16th, 2011, the Special Act on Cadastral Resurvey was enacted and promulgated for implementation basis and procedures of cadastral resurvey project to correct inconsistent cadastral records with actual states of lands. However, for the Special Act on Cadastral Resurvey was prepared based on public act studies, it handles judicial rights carelessly, and it tends to emphasis on administrative law efficiency rather than protection of the rights of the individual. Under current status that the legislation system for judicial rights is not organized, it is hard to avoid legal disputes around legal benefit and protection of the individual due to deficiency of the legislation system. According to the Special Act on Cadastral Resurvey, ⅰ) if the actual land state is not coincident with the boundary on the cadastral record, the cadastral competent office shall establish the boundary based on agreement between land owners, actual boundary and boundary relocation surveying, ⅱ) accordingly, shall conduct renovation surveying of cadastre and prepare the cadastral confirmation report, and ⅲ) shall determine the boundary by the resolution of the boundary determination council based on such data. However, if the determined boundary does not correspond with actual rights, above mentioned boundary cannot be determined. If land owners or stakeholders appeals to the cadastral competent office or file an administrative adjudication or litigation against the decision of the boundary determination council, the land has to be remained as so called the boundary undetermined land. As the land unit of the land owner who objects to the decision of the boundary determination council is excluded from the project target lands, it may create conflict between the registration book based on new cadastral record and that based on existing cadastral record and the boundary dispute will occur in the form of ownership verification lawsuit in the future. Other than that, it is expected that the land owners dissatisfied with established boundaries will object by various suit claims such as boundary confirmation suits, ownership verification suits and acquisitive prescription claims. In this paper, noticing that the Special Act on Cadastral Resurvey does not clearly stipulate on whether there is change in the real right for the ownership scope of adjacent lands and legislative relationship for specie collection and payment, it is attempted to seek verification on its legislative relationship. It is considered that such attempt will be relevant to resolutions in the boundary disputes in the future.