[등기관등의처분에대한이의][공2013상,397]
Whether a “a person who has received a universal legacy” is included in the “other general successor” who can apply for registration of preservation of ownership of unregistered land or building as prescribed by Article 65 subparag. 1 of the Registration of Real Estate Act (affirmative)
The "other general successor" that can apply for registration of preservation of ownership of unregistered land or building under Article 65 subparagraph 1 of the Registration of Real Estate Act shall be deemed to include "a person who has received a universal legacy".
Article 65 subparagraph 1 of the Registration of Real Estate Act, Articles 1005 and 1078 of the Civil Act
Seoul National University Development Fund, a foundation
Seoul Eastern District Court Order 2012Ra104 dated July 13, 2012
The order of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.
The grounds of reappeal are examined.
Article 65 of the Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011) provides that “any of the following persons may file an application for registration of preservation of ownership of unregistered land or buildings,” and Subparag. 1 provides that “any person who is registered as the first owner in the land ledger, the forest land ledger or the building ledger, or his/her heir or other general successor.” Meanwhile, Article 1078 of the Civil Act provides that “any person who has received a universal legacy shall have the same right and duty as his/her heir,” and the main text of Article 105 of the Civil Act provides that “any inheritor shall succeed to the comprehensive right and duty of the inheritee’s property from the time of the commencement of the inheritance”.
In full view of the purport and content of the amendment of the Registration of Real Estate Act, and relevant legal provisions, the "other general successor" that can apply for registration of preservation of ownership of unregistered land or building under Article 65 subparagraph 1 of the Registration of Real Estate Act shall be deemed to include "the person who received a universal legacy".
Nevertheless, the court below held otherwise that the disposition of the registrar who rejected the application for registration of initial ownership on the ground that the re-appellant who received the entire legacy including the instant real estate under his/her name through a testamentary document does not include the “person who received a universal legacy” under Article 65 subparag. 1 of the Registration of Real Estate Act, constitutes “where the case is not to be registered” under Article 29 subparag. 2 of the Registration of Real Estate Act, and thus, the court below erred by misapprehending the legal principles on “other universal successors” under Article 65 subparag. 1 of the Registration of Real Estate Act, thereby adversely affecting the conclusion of judgment.
Therefore, the order 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 Kim So-young (Presiding Justice)