浦落의 法理의 再考

Abstract

If any land around a river shifts to the river by flood, or any land around a beach is submerged to the sea water by a seismic sea wave, then the land's ownership is extinct, which is the attitude of the supreme court leading case. Furthermore, the case rules that if such a land turns to the land again by the change of the river flow or a land reclamation project, the original land can't recover its prior ownership. This is the legalistic principle having been recognized through the leading case of a court since the Japanese imperialism. The primary reason is that a river or a sea water is jointly owned, so the land under it can't become the property of a private ownership that as soon as it gets united to the river or the sea, its ownership comes to be extinct forever. However, a lot of land is publicly restricted for public good, but it is doubtful to perfectly deny the ownership of the land under the river or the sea mainly because it is a co-owned water surface. The article 98, the civil law provides that what can be an object for ownership includes manageable material things. Nevertheless, requiring manageability and economic value as well in Porak is groundless. And the ownership was recognized to the original owner if Porak in a river was recovered to land in Iapanese Imperialism, which had been a consistent practice law since Joseon Dynasty, so it is problematic that the supreme court changed the leading case saying such a practice was extinct from 1918, when the land survey project was terminated. Currently, if the land around a river loses its ownership because it turns into the river, the nation compensates for that, while if the land near a sea beach turns to the sea, the land ownership turns extinct, and the nation doesn't compensate for that. And it grants a new ownership to the person reclaiming the sea. Such a legalistic principle of Porak has no choice but to be regarded as national policy goal to simplify a dispute on land ownership after a land reclamation project. But saying that the land becoming the ownership object can't be the object of ownership only because it is submerged under a river or a sea is contrary to the nature, and runs counter to the practice law having been continuing since Joseon Dynasty. Thus the judicial principle of Porak should be looked into again.