[소유권보존등기말소][공1980.3.15.(628),12583]
(a) Inheritance of property due to the death of families other than Australia under the former customary law;
(b) Estimated history of registration of preservation of ownership;
1. Prior to the enforcement of the current Civil Code, inheritance of property due to the death of a family member other than Australia is jointly inherited by the lineal descendant and there is no inheritance right in the case of a woman whose lineal descendant or descendant is not in the same family register as that of the inheritee, and inheritance of the adopted child was customary in the Republic of Korea.
2. Where registration of ownership preservation on real estate has been made, the presumed ownership has been vested in the title holder, or the title holder claims that the ownership has been transferred by the owner prior to the registration of ownership preservation, and where the former owner denies the transfer of ownership to the title holder, the presumption of such transfer has been broken because it differs from the transfer of ownership registration.
Articles 186 and 100 of the Civil Act
Supreme Court Decision 69Da1324 delivered on April 14, 1970, 4279Da32,33 delivered on October 11, 194, Supreme Court Decision 73Da1658 delivered on February 26, 1974
Olila
[Defendant-Appellee] 1 and 7 others, Counsel for defendant-appellant-appellee
Seoul High Court Decision 78Na917 delivered on May 1, 1979
The appeal is dismissed.
The costs of appeal shall be borne by the Defendants.
The grounds of appeal are examined.
1. On the first ground for appeal:
Before the enforcement of the current Civil Code, the inheritance of property due to the death of a family member other than head of household is jointly inherited by the lineal descendant of the lineal descendant, and there is no inheritance right in the case of a female whose lineal descendant is not in the same family register as that of the inheritee, and the inheritance of the adopted child was customary in Korea (see Supreme Court Decision 69Da1324 delivered on April 14, 1970 and Supreme Court Decision 1946Sang32, Oct. 11, 1946).
According to the judgment of the court below, the land in this case was owned by the plaintiff's prior non-party 1, and it is not a dispute between the parties that the plaintiff and the non-party 1 et al. jointly inherited the land as a family member of the 1942.6.28 of the 1942.
In theory, since the inheritance of property not accompanied by the inheritance of Australia is not recognized under the former Civil Code, the ownership of the property in the present case is the hostile investment of the Dong, and the sole inherited property in the present case, which has inherited family by substitute succession, cannot be adopted as an independent opinion, and the decision of the court below that the plaintiff who is one of the co-inheritors, is justified in the decision of the court below that the plaintiff as a co-inheritors's act of preserving the co-inheritors.
2. On the second ground for appeal:
If registration of preservation of ownership on real estate has been made, it is presumed that the title holder has ownership to the real estate, or that the title holder has received ownership transfer from the owner before the registration of preservation, and if the former owner denies the transfer of ownership to the person under the title of preservation registration, it shall be deemed that the presumption of ownership transfer registration has been broken (see Supreme Court Decision 73Da1658, Feb. 26, 1974). In this case, even if the Defendants (excluding the defendant's registration tax, 00Da1658, Feb. 26, 1974) have the registration of preservation in the name of the defendants (the defendants except the defendant's registration is the title holder's litigation) but it is obvious in the record that the plaintiff obtained a title trust from the clan that received the property by the plaintiff and the plaintiff denies the fact of donation, so the above registration is null and void as long as it is not recognized that the defendants has real ownership. Therefore, the judgment of the court below that denied the fact of donation in the defendant's Chapter and therefore, it is justified.
3. On the third ground for appeal
According to the judgment of the court below, the court below's rejection of evidence consistent with the defendants' assertion or ratification, and its reasons are specified in the records, and the court below's measures are acceptable. It does not err by misapprehending the rules of evidence, such as the theory of lawsuit, or by misapprehending the legal principles due to incomplete deliberation.
4. On the fourth ground for appeal:
According to the judgment of the court below, in rejecting the evidence No. 1, the fact that non-party No. 1, non-party No. 2, and non-party No. 3 were convicted of perjury in the court of first instance. However, the records are examined, and even if this point is excluded, it is sufficiently acceptable to the court below's measures based on the evidence of the court below, since the non-party No. 1, non-party No. 2, and non-party No. 3 were convicted of perjury in the court of first instance, it cannot be a hindrance to the measures of the court below. Thus, the theory on this point is without merit.
Therefore, the appeal shall be dismissed and the costs of the lawsuit shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-chul (Presiding Justice)