[소유권이전등기][미간행]
[1] The contents, method, and degree of a person who asserts that certain property is a clan property shall assert and prove it
[2] Whether a title truster may assert that the title truster is a registration under a title trust against the title trustee regardless of the presumption of registration (affirmative)
[1] Articles 203 and 288 of the Civil Procedure Act, Article 31 of the Civil Act / [2] Article 103 of the Civil Act / [title trust]
[1] Supreme Court Decision 95Da16103 delivered on November 14, 1995 (Gong1996Sang, 9) Supreme Court Decision 95Da44283 delivered on October 10, 1997 (Gong1997Ha, 3376), Supreme Court Decision 96Da488 delivered on July 10, 1998 (Gong1998Ha, 2051) / [2] Supreme Court Decision 97Da54253 delivered on March 13, 1998 (Gong198Ha, 1039)
Plaintiff clan (Law Firm Rate, Attorneys Kim Tae-hwan et al., Counsel for the plaintiff-appellant)
Defendant (Attorney Lee Yong-hoon et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2006Na11700 decided September 27, 2006
The appeal is dismissed. The costs of appeal are assessed against the defendant.
A party who asserts that a property is a clan property shall assert and prove the reason why the property is set up as a clan property, but it does not necessarily require an explicit statement, and if it can be deemed that a certain property contains the fact about the circumstance of establishment in the assertion and affiliation of a clan property, it shall be sufficient if it can be presumed the fact of establishment by asserting and proving indirect facts, etc. (see Supreme Court Decision 95Da44283, Oct. 10, 1997, etc.). Meanwhile, since a title trust assertions the fact that its registration was made under a title trust agreement on the premise of the presumption of the registration, the title truster may assert that the registration with respect to the title trustee was made through a title trust even if there is the presumption of the registration (see Supreme Court Decision 97Da54253, Mar. 13, 1998, etc.).
In full view of the admitted evidence, the court below acknowledged the facts as stated in its holding, and found the facts as follows: considering the mutual relation between the plaintiff, the defendant and the (defluence omitted), the location of each of the real estate of this case and the tombstones on its ground and its attached rank each year; the reason why the real estate of this case was managed by the non-party 1, the reason why the ownership was changed in the name of the non-party 2, the reason why the ownership was changed in the name of the non-party 2, and the fact that the non-party 2 reported the ownership of the real estate of this case to the counter-party 1, the court below held that each of the real estate of this case was originally owned by the plaintiff, and that the plaintiff conducted a sacrife for the dead acids, etc. which were buried on the ground of the above real estate of this case, for the convenience of management in the Japanese colonial era, and held the name of the non-party 2, the father of the defendant who is the non-party 2.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Ji-hyung (Presiding Justice)