[소유권이전등기말소등청구사건][고집1978민,251]
Death and inheritance of property at the time of the Gu residents' law;
According to the customs of the Gu residents law era, when there is no child to the inheritee in the case of family inheritance accompanied by the inheritance of property and the death of a female head of family, the inheritee's special property belonging to his/her father and the property inherited from the deceased father of the deceased shall be inherited by the deceased father.
Article 100 of the Civil Act
Lee-ju et al.
Republic of Korea and one other
Seoul District Court Incheon support (77Gahap183) for the first instance court Incheon District Court
From among the original judgment, the part against the defendant's operation shall be revoked, and the plaintiffs' claims corresponding thereto shall be dismissed.
The defendant's appeal is dismissed.
Of the litigation costs, the costs incurred between the plaintiff and the defendant Republic of Korea shall be borne by the same defendant, and those incurred between the plaintiff and the defendant shall be borne by the plaintiff
With respect to the real estate listed in paragraphs (1) through (2) of the attached Table No. 16187 for the receipt of the Incheon District Court of Seoul District on September 8, 1969 for the transfer of ownership due to the reversion of rights on September 11, 1948 for the real estate listed in paragraph (3) of the attached Table No. 1176 of the same court received on February 17, 1967 for the registration of cancellation of the transfer of ownership due to the reversion of rights on September 11, 1948 for the real estate listed in paragraph (3) of the attached Table No. 1177 of the same court received on February 17, 1967, and the operation of the defendant will implement the procedure for the cancellation of the transfer of ownership due to the sale on December 29, 196 for the real estate listed in paragraph (3) of the attached Table No. 3.
Litigation costs shall be borne by the defendant.
The judgment of the court below is revoked, and the plaintiffs' claims are dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
According to the evidence Nos. 1, 2, 4, and 6, each real estate listed in the separate sheet Nos. 1 to 1 to 3 is originally registered as the ownership of the non-party 1's right. It can be recognized that each ownership transfer registration has been made in the name of the defendant 2 with respect to the real estate listed in the separate sheet No. 2-3, No. 1-3, and No. 4-2, and No. 7, and each of the above statements stated in the separate sheet No. 1 to 5's transfer registration has been made in the name of the defendant 2 with respect to the real estate listed in the separate sheet No. 3 for the reason of reversion to the right of the non-party 1's right. The non-party 2, who was the deceased non-party 4's lineal descendant after the death of the non-party 1 to 4, who was the non-party 2's deceased 4, as the deceased 194.
However, the former Act is applicable to the inheritance commenced before the enforcement date of the new Civil Code, and according to the customs of the former Act, in the case of the family inheritance accompanied by the inheritance in family and the death of the female family owner, if there is no child to the inheritee, the inheritee’s special property belongs to his/her own body and the deceased’s property inherited from his/her deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased father’s deceased property
Therefore, this case's real estate is inherited property of the plaintiffs, but the defendant Republic of Korea has completed the registration of ownership transfer under the name of the title of the real estate which was voluntarily transferred without any legal ground, so each registration is an invalid registration lacking the cause, and the registration of transfer of real estate in the attached Form 3 list of the defendant's miscellaneous operation is also null and void, so it is obligated to cancel it as requested by the plaintiffs.
The defendant Republic of Korea asserts that the right to the real estate was acquired by prescription since it has been occupied in a peaceful manner with the intention of ownership since it was reverted to the right to the real estate on the register. However, as seen in the above recognition, it was caused by an unlawful mistake that the ownership of the real estate was reverted to the real estate as the front owner, and it was judged that it was caused by gross negligence or bad faith, and there was no assertion as to special circumstances that the commencement of possession was the external form and the fiduciary negligence by the owner of the right to the real estate. Therefore, the defendant's assertion on the prescriptive acquisition by prescription is without merit.
Then, the defendant's operation of this case asserted that the acquisition by prescription of the above defendant is consistent with the substantive legal relationship from the time of registration as to the real estate recorded in the third inventory since it was purchased from the defendant Republic of Korea as the title holder of the registration on December 19, 1966 and completed the registration of ownership transfer on the ground of the above sale on February 17, 1967 after completing the registration of ownership transfer on the ground of the above sale, and it was occupied in good faith and without negligence. Therefore, considering the purport of the party's pleading as to possession as to the entry in the third inventory No. 1-6 of the above evidence No.
As a result, the part of the plaintiff's objection claim against the defendant's Republic of Korea is justified, and the part of the defendant's operation is dismissed without reason. Since the part concerning the defendant's operation of this case in the original judgment is unfair based on different conclusions, it shall be revoked. The appeal by the defendant's Republic of Korea as to the remaining part is dismissed without reason. It is so decided as per Disposition with respect to the bearing of litigation costs at the expense of each losing party
Judges Jeon Soo-hee (Presiding Judge)