[2] The case reversing the judgment of the court below on the ground that the method of surveying the boundary restoration surveying and the basic point of surveying are identical to that of the cadastral registration, and thus, refusal of the application for resumption of argument on this point constitutes an open fact requiring proof is an incomplete hearing

[2] The case reversing the judgment of the court below on the ground that the method of surveying the boundary restoration surveying and the basic point are identical to that of the time of cadastral registration is not only the fact requiring proof, the result of which may vary depending on the type of proof, but also it seems that it is a matter that can be easily investigated by the method of inquiry about the competent authority in the cadastral record or an inquiry about the appraiser, etc., and the court below should have conducted sufficient deliberation in order to resolve the dispute between the parties properly and fairly, by granting the opportunity of proof, etc.

1. The facts acknowledged by the lower court based on its employment evidence and the summary of its determination are as follows.

The instant building owned by the Defendant was constructed over 5,161 square meters of land for the factory of the same 5,161 square meters and road sites adjacent to the Defendant, which are owned by the Plaintiff on the public cadastral book, Yangyang-si, ○○-si (Seoul-gun, △△△△△-gun, the Gyeonggi-do, the administrative district changes), and 258 square meters and adjacent thereto. The land owned by the Defendant was divided from the miscellaneous land of the same miscellaneous land, the registration of which was registered on the same miscellaneous land (number 3 omitted) and its boundary was made at the time of the division on September 17, 1974.

원고는 이 사건 건물 중 원심 설시의 부분이 원고 소유의 토지를 침범하였다고 주장하여 그 부분의 철거와 그 부지 부분의 인도를 구하는바, 과연 위 침범 사실이 인정되는지를 살펴보면, 위 같은 동 (지번 3 생략) 임야 2,220평(7단 4무)이 1967. 12. 21.(원심의 1969. 5. 12.는 오기로 보인다) 분할 전의 같은 동 (지번 4 생략) 잡종지 2,100평으로 등록전환되면서 120평이 줄어 등록되었고, 위 (지번 4 생략) 토지에 동쪽으로 인접한 고양시 ◇◇동(행정구역 변경 전의 경기 고양군 ☆면 ▽▽리) (지번 5 생략) 임야 또한 1975. 5.경 같은 동 (지번 6 생략) 대지로 등록전환되었는데, 위 각 등록전환을 위한 측량 또는 인접한 지적도간의 접합 과정에서 착오가 발생하여 접합 부분의 경계선 중 굴곡지점의 ◇◇동쪽 내각이 원래 임야도상의 각도인 약 155도에서 약 150도로 좁아지면서 지적경계선이 ◇◇동쪽으로 그만큼 밀린 상태로 지적도가 잘못 작성ㆍ등록됨으로써, 지적도상 ◇◇동쪽 토지의 일부 면적이 모자라는 등 주위 수필지의 토지 위치가 잘못 확정되었고, 이에 따라 위 토지 일대는 현장에서 확인된 기지점과 도상경계점이 일치하지 않고 동서 및 남북이 서로 밀리는 현상이 나타나는 등으로 단순한 측판측량으로는 측량이 곤란한 상태여서 고양시장이 분쟁 발생을 우려하여 경계측량을 일시 금지하는 조치를 취하기도 하였는바, 위와 같은 지적도의 작성ㆍ등록상의 잘못은 인근에 있는 원ㆍ피고 소유 토지의 경계에도 어떠한 영향을 미쳤을 가능성이 있다고 보여지고, 피고도 현행 지적공부에 의한 경계확정은 잘못된 것이라 하여 침범 사실을 극력 다투고 있으므로, 원ㆍ피고 간의 토지 경계는 지적도상의 경계가 아니라 실제의 경계에 의하여 확정하여야 한다.

As such, the boundary restoration survey to restore the boundary on the cadastral map is at issue as to whether the boundary is invaded or not, and should be based on the same method as at the time of registration, and the basis point at the time of the survey. However, the survey result (Evidence A 3) consistent with the fact that the building owned by the plaintiff was damaged by the land, and the survey and appraisal result by the appraiser Non-party 1 of the first instance trial cannot be used as evidence because there is no evidence showing the existence of the survey result based on any method and basic points. In addition, in this case where the boundary of the original and the defendant's land was not proved by the survey method and basic point at the time of September 17, 1974 due to the demand for proof by the court below, the survey result by the appraiser Non-party 2 of the first instance trial before remand was surveyed by the cadastral supplementary triangulation survey, topographic survey, and plane survey, and even if it is relatively detailed, it cannot be readily concluded that the cadastral map is suitable for the restoration of the boundary. Thus, the plaintiff's claim for cadastral map map cannot be justified.

2. This Court shall be determined as follows:

A. Where certain land is registered with one parcel in the cadastral record under the Cadastral Act, the land shall be specified by this registration unless there are special circumstances. Thus, in preparing the cadastral map, the scope of ownership of the land shall be determined by the boundary on the cadastral record regardless of the actual boundary, unless there are special circumstances, such as where the boundary on the cadastral map was prepared differently from the true boundary due to technical errors (see Supreme Court Decisions 92Da52887 delivered on April 13, 1993; 93Da56381 delivered on May 13, 1994, etc.).

Examining the evidence cited by the court below in determining that the cadastral map on the land of this case was erroneously prepared and registered due to an error in the course of surveying or a contact with the adjacent cadastral map for registration conversion, it is erroneous that the land dispute data (record No. 356 pages) bound after the appraiser 2's appraisal report is part of the appraisal result of the same appraiser, and there is no data to recognize the authenticity. It is different from the cadastral map of the court below prior to remand that the boundary point and the Do boundary point are inconsistent with each other and the boundary point of the cadastral map are consistent with each other, and it is difficult to readily conclude that the part of the cadastral map of this case was inconsistent with the cadastral map of the court below, which is the cadastral map of this case and the cadastral map (the cadastral map of this case, which is the method of surveying the appraiser's cadastral map, was difficult to measure the neighboring land of this case, and it is also difficult to find the boundary point of the cadastral map of the non-party 4, which is the cadastral map of this case and the cadastral map of this case, as the cadastral map of this case.

In light of the above evidence relations, the evidence alone adopted by the court below cannot be viewed as a case where the boundary of the original and the defendant's land should be restored by the boundary rather than the boundary in the cadastral map because the cadastral map of this case was falsely prepared and registered. Therefore, the court below's conclusion differently is erroneous in the misapprehension of legal principles as to the confirmation of land boundary or in the violation of the rules of evidence, and therefore, it is justified to point this out.

In addition, while the court below should determine the boundary of the land owned by the plaintiff and the defendant by the actual boundary rather than the boundary in the cadastral map, it is pointed out that the court below rejected the plaintiff's claim on the ground that there is no proof of the legitimate boundary restoration survey for the actual restoration of the boundary in the cadastral map, without examining and determining the actual boundary between the above land.

B. According to the records, in the judgment of remanding this case, the court shall conduct a boundary restoration survey conducted to restore the boundary in the cadastral map on the basis of the issue of boundary invasion and in the same way as the survey method at the time of registration. Thus, although the court below did not examine the boundary of the original and the Defendant's land before remanding, and without examining the method and basis of the survey and appraisal conducted at the time when the boundary of the original and the Defendant's land was created, it was pointed out that accepting the Plaintiff's claim without examining what method and basis were based on the survey and appraisal conducted at the court below's adoption of the court below, it was unlawful for the court below to hold the Plaintiff's claim. However, the court below after the remanding this case, after the remanding the case, continued only the demand for proof without any examination,

However, the above contents of the hearing shall be deemed to fall under the facts requiring proof, which may change the result of the judgment according to the scope of the verification, and it shall be deemed to be the matters that can be easily examined by the fact inquiry or the summons to the competent authority of the appraiser in the cadastral record. Therefore, the court below should have conducted sufficient deliberation by granting the parties concerned the opportunity to resume the hearing in order to properly and fairly resolve the dispute between the parties (see Supreme Court Decision 94Da3433 delivered on November 11, 1994). The above decision without doing so, and the court below's decision is still erroneous in the misapprehension of the law of incomplete hearing. Thus, the discussion on this point is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Yong-sik (Presiding Justice)