Law Firm Pakistan, Attorney Park Jae-chan

Attorney Lee Jae-in et al.

Law Firm Public Partnership et al., Counsel for the defendant-appellant

1. 원심의 인정에 따르면, 이 사건 부동산에 관하여 '종단대순진리회목포방면'(이하 기존 목포방면'이라 한다)이 그 명의로 소유권보존등기를 마친 후, 2007년~2008년 경원고가 그 명의인 '대미륵봉심회'로 1차 등기명의인 표시변경등기를 마쳤는데(일부 부동산에 관하여는 먼저 '미륵봉심회'로 등기명의인 표시변경등기가 이루어졌다가 다시 '대미륵봉심회'로 등기명의인표시변경등기가 이루어졌다), 2018년경 피고 종단대순진리회 목포방면(이하 '피고 방면'이라 한다)이 '종단대순진리회 목포방면'으로 각 등기명의인표 시변경등기(이하 '2차 표시변경등기'라 한다)를 마친 후 그 중 일부 부동산에 관해서는 피고 재단법인 대순진리회목포방면 유지재단에 소유권이전등기가 마쳐졌다.

The lower court determined that, on the premise that “If the second indication registration was completed in such a way as to impair the identity of the registered titleholder, the Plaintiff, who is the original registered titleholder, may seek the cancellation of the second indication registration against the Defendant defense room, and then, on the premise that the identity between the Plaintiff and the Defendant defense room, who is the former registered titleholder, is not recognized, the Defendant defense room is obligated to implement the procedure for the cancellation registration of the second indication registration, and that the Defendant defense center, which is the Defendant foundation, is also obligated to cancel the registration of transfer of ownership for the part of the real estate that was received from the Defendant defense room. Furthermore, the lower court rejected the Defendants’ assertion that the Plaintiff was not the true owner of the instant real estate because it was a religious organization other than the existing b

2. However, we cannot accept the judgment of the court below for the following reasons.

A. If the additional registration of change or revision of a registered titleholder is made in such a way as to harm the identity of the registered titleholder, and the indication on the real estate registration certificate is not indicated on the real estate ownership, but on the real estate registration certificate, the real owner may, by exercising the right of claim for exclusion of infringement on the ownership, claim against the holder of the ownership on the implementation of the procedure for registration of change or cancellation of the additional registration that interferes with ownership. As such, a person who intends to request implementation of the procedure for registration of change or revision of the indication of a registered titleholder, such as real estate, must prove that he/she is the person who is the original registered titleholder of the real estate and is the true owner (see, e.g., Supreme Court Decision 2008Da1859, Dec. 11,

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the Plaintiff is a true owner of the real estate in question as the “existing necking plane.” Therefore, the Plaintiff is a person who is the original titleholder of the real estate in question and is a true owner. In other words, the Plaintiff bears all the responsibility to prove that the Plaintiff is an organization identical to the existing necking plane, the registration of preservation of ownership of which was completed in its name, and that the registration of change in the second necking plane is detrimental to the identity of the registered titleholder.

Nevertheless, the lower court did not fully examine whether the Plaintiff’s claim for cancellation registration is true owner, i.e., an organization identical to the existing wooden plane, and determined that the Plaintiff may file a claim for cancellation registration of the second indication with Defendant Uide on the sole ground that the identity between the Plaintiff and the Defendant Uide is not recognized, and rejected the Defendants’ claim on the ground that there is no evidence to deem that the Plaintiff is not an organization identical to the existing wooden plane on the premise that the Plaintiff is not a true owner. In so doing, the lower court erred by misapprehending the legal doctrine on the elements for establishing the right to claim cancellation registration of the registered titleholder’s registration, the burden of proof, distribution of the burden of proof, etc., and thereby adversely affecting the conclusion of the judgment.

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 for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Min You-sook

Justices Lee Dong-won