[공유물분할·소유권이전등기절차등][공2004.1.15.(194),129]
[1] The date of receipt, receipt number, and cause date of the former registration in the registration of the transfer of ownership, and the presumption of the above registration of the restoration of ownership in a case where the former registration becomes an official column
[2] The method of applying for registration of recovery of destruction of several co-owned real estate and, where a person entitled to registration dies, the nominal owner of the registration of recovery of loss and the registered titleholder at the time of applying for registration of recovery of loss, whether the presumption of the registration of recovery of loss
[3] Whether a lawsuit demanding a partition of co-litigation is an essential co-litigants (affirmative), and where part of co-litigants have filed an appeal in the case of an essential co-litigation, the scope of adjudication on appeal
[1] Where the registration of transfer of ownership is made according to the procedure for recovery registration after the registration of transfer of ownership is destroyed, it is presumed that the registration is legally accepted and processed by the registry official. Thus, even if the date of receipt, receipt number, and cause date of the former registration in the registration of cancellation of ownership transfer registration is each official column, barring any special circumstance, it is presumed that the registration official is legally treated by the application for registration accompanied by a document evidencing the right of the former registration, such as a copy of land cadastre, according to the summary
[2] One of the co-owners may apply for registration of recovery of a real estate jointly owned by several persons under the name of all the co-owners, and where the person entitled to registration dies, registration of recovery shall be made under the name of the inheritee instead of the name of the inheritor. Thus, even if the registered titleholder had already died at the time of applying for registration of recovery, the presumption of registration of recovery of loss does not de
[3] A lawsuit claiming a partition of co-litigation is an essential co-litigation in which the co-litigants who have filed a partition become the plaintiff and all other co-litigants are co-litigants, and in an inherent essential co-litigation requiring a joint decision of judgment between the co-litigants and the other party, an appeal raised by some of co-litigants has its effect on other co-litigants. Therefore, the final judgment is interrupted in relation to all the co-litigants, and the lawsuit is transferred to the appellate court as a whole, and its effect of the judgment of appeal is limited to the co-litigants who have not filed an appeal, and thus, the appellate court shall deliberate
[1] Articles 80 and 81 of the Registration of Real Estate Act / [2] Articles 79 and 80 of the Registration of Real Estate Act / [3] Article 67 of the Civil Procedure Act, Article 268 of the Civil Act
[1] Supreme Court en banc Decision 80Da3286 delivered on November 24, 1981 (Gong1982, 66), Supreme Court en banc Decision 96Da12511 delivered on October 17, 1996 (Gong1996Ha, 3186) / [2] Supreme Court Decision 92Da5072 delivered on July 27, 1993 (Gong1993Ha, 2395) / [3] Supreme Court Decision 68Da414, 415 delivered on May 21, 1968 (Gong16-2, 47) Supreme Court Decision 9Da3124 delivered on July 10, 201
Plaintiff (Counter-Defendant) 1 and one other (Attorney Im Sung-soo, Counsel for the plaintiff-appellant)
Defendant Counterclaim Plaintiff and six others (Law Firm Ho, Attorneys Yang Yang-soo et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 2003Na6646, 6653 Delivered on July 30, 2003
The part of the lower judgment regarding the principal lawsuit is reversed, and that part of the case is remanded to the Seoul High Court. The appeal on the counterclaim by the Defendant (Counterclaim Plaintiff) is dismissed.
1. Where the registration of transfer of ownership is made in accordance with the procedure for recovery registration after the registration of transfer of ownership is destroyed, it is presumed that the registration of restoration is legally accepted and processed by the registry official. Thus, even if the date of receipt, receipt number, and cause date of the former registration in the registration of restoration of ownership transfer is each official column, barring any special circumstance, it is presumed that the registration official lawfully handled the registration by the application for registration accompanied by an official document proving his right to the former registration, such as a copy of land cadastre, according to the summary of the registration of restoration of ownership transfer, unless there is a special reason (see Supreme Court en banc Decision 80Da3286 delivered on November 24, 1981, Supreme Court Decision 96Da12511 delivered on October 17, 196, etc.). In addition, one of co-owners can apply for the registration of restoration of ownership of real estate jointly owned by the co-owners under the name of the co-owner, and if the person entitled to registration dies, the registration of restoration should be registered in the name of the inheritee.
In the same purport, the court below acknowledged the presumption power of the registration of the transfer of ownership in the name of Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 5, Nonparty 6, Nonparty 7, and Nonparty 8 on May 15, 1954 with respect to the land in this case as the date of receipt of the former registration on May 15, 1954, and the receipt number was blank, and found that the registration of the transfer of ownership was made under eight joint names, including Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, Nonparty 7, and Nonparty 8, etc. on November 5, 194, the registration titleholder was killed, and even if Nonparty 5 was aware of the fact of the application for the restoration registration, it cannot be concluded that the completion certificate of the registration of the restoration of ownership in this case was made under an unauthorized paper without authority. Accordingly, according to the adopted evidence, the court below did not err in the misapprehension of law or the record, as alleged in the ground of appeal.
2. (A) According to the records, the court below notified the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendants (Counterclaim plaintiff; hereinafter referred to as "the defendant") of the date for preparatory pleading and the date for pleading, and notified the plaintiff (the counterclaim defendant; hereinafter referred to as "the plaintiff") and the defendants of the date for pleading and the date for pleading, and sentenced the plaintiff and the defendants to the trial.
(B) However, the above judgment of the court below is not acceptable for the following reasons.
A lawsuit claiming a partition of co-litigation is an inherent indispensable co-litigation in which a co-litigant claiming a partition becomes a plaintiff and all other co-litigants become a co-defendant (see Supreme Court Decision 9Da31124, Jul. 10, 2001). In the case of an inherent indispensable co-litigation in which a judgment becomes final and conclusive between the co-litigants and the other party, an appeal raised by some of the co-litigants has its effect on other co-litigants. Therefore, in relation to all the co-litigants, the final and conclusive judgment is interrupted in relation to the co-litigants, and the lawsuit is transferred to the appellate court as a whole. The effect of the judgment of the appellate court is limited to all the co-litigants who did not appeal, so the appellate court must deliberate and determine on all the co-litigants (see Supreme Court Decision 68Da414, 415, May 21,
Unlike this, the lower court’s decision that deliberated and judged only the Defendants who filed an appeal among co-litigants in the lawsuit claiming a partition of co-litigants, was erroneous in violation of Acts and subordinate statutes regarding the adjudication of indispensable co-litigation as stipulated in Article 67 of the Civil Procedure Act, and this affected the conclusion of the judgment, and thus, the part concerning the principal lawsuit in the judgment of the lower
3. Therefore, the part of the judgment of the court below regarding the principal lawsuit is reversed, and that part of the case is remanded to the court below. The defendant's counterclaim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jack-dam (Presiding Justice)