[소유권보존등기말소][집38(4)민,71;공1991.1.15.(888),195]
Where a registration of preservation of ownership has been made in duplicate on the same real estate with a different registration titleholder, but a prior registration is not invalidated (negative)
Where a registration of initial ownership has been made differently from the person registered for the same real estate, the registration of initial ownership transfer shall be null and void under the Registration of Real Estate Act which adopts one real estate form principle even if the registration of initial ownership transfer is made by the purchaser of the real estate, unless the initial registration of initial ownership transfer becomes null and void.
Article 186 of the Civil Act, Article 15 of the Registration of Real Estate Act
Supreme Court en banc Decision 87Meu2961, 87Da453 Decided November 27, 1990
Kim Chang-sung et al., Counsel for the defendant-appellant-appellee
Attorney Kim Sung-sung, Counsel for the defendant-appellant
Seoul High Court Decision 88Na47163 delivered on June 21, 1989
The judgment below is reversed and the case is remanded to Seoul High Court.
The Plaintiff’s attorney’s ground of appeal is examined.
According to the reasoning of the judgment of the court below, the court below acknowledged that the forest of this case was registered as preservation of ownership in the name of the Cho Jong-si, Japan on December 4, 1924, and the registration of ownership was made in the name of the non-party Kim Jong-sung on May 2, 193 after the registration of ownership transfer was made in the name of the non-party Kim Jong-sung on May 2, 193, and again, the registration of ownership transfer was made in the name of the plaintiff on September 2, 1987. On August 5, 1946, the non-party Shin Jong-don, who was the owner of the forest of this case at the time of the forest of this case, and died before completing the registration of ownership transfer in the name of the defendant on March 10, 1970, the defendant inherited the forest of this case and completed the registration of ownership transfer registration in the name of the defendant on March 10, 1970. However, the defendant's registration of ownership transfer was not in conformity with the plaintiff's substantive legal relationship.
However, where a registration of initial ownership has been made in duplicate because the registered titleholder was different with respect to the same real estate, the registration of initial ownership is null and void if the registration of initial ownership was made by the purchaser of the real estate (see, e.g., Supreme Court Decisions 87DaDota2961, 87Da453, Nov. 27, 1990). The first examination of the records of this case reveals that the registration of initial ownership in the name of the defendant was null and void unless the registration of initial ownership is null and void (see, e.g., Supreme Court Decision 87DaDota2961, 87Da453, Nov. 27, 190).
Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the validity of duplicate registration, which affected the conclusion of the judgment.
Therefore, without further proceeding to decide on other grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)