[소유권보존등기말소][공1999.12.15.(96),2501]
[1] The validity of a document as evidence where the copy is substituted for the original document or the copy is submitted as the original document
[2] Whether the presumption of the registration of the restoration of loss based only on the ownership certificate issued by the head of Si/Eup/Myeon at the time of the enforcement of the former Cadastral Act
[1] Under Article 326 (1) of the Civil Procedure Act, a document may be submitted in lieu of the original, original, or certified copy, or a copy itself as an original in lieu of the original. Thus, if the other party acknowledges the existence or establishment of the original and objects thereto, a copy may be submitted in lieu of the original if there is no objection thereto, and in such a case, the same effect as the original is the case where the original is submitted. On the other hand, where a copy is submitted as an original, the copy shall be independent documentary evidence, but in this case, it shall not be deemed that the original has been submitted as an independent documentary evidence, and in this case, there is a same original as the copy by evidence, and it shall be recognized that the original has been duly established.
[2] According to the previous Cadastral Act (Act No. 165 of Dec. 1, 1950), the Enforcement Decree of the same Act (Presidential Decree No. 497 of Apr. 1, 1951), and the Chief Justice of the Supreme Court of the Supreme Court on Oct. 15, 1952, the authority to externally prove ownership of the land under the above implementation outline shall be prepared and kept in the official cadastral record, and the head of Si/Eup/Myeon in charge of the registration affairs shall keep the land register, and the head of Si/Eup/Myeon in charge of the registration affairs shall keep the land register and the cadastral map, which are merely entering the land register and the cadastral map in accordance with the above cadastral record, keeping the land register and the land registration map while keeping the ownership of the land, if it is known that there is no authority to prove the ownership of the land, so it is difficult to recognize the presumption of the registration of destruction or recovery only for the certification of ownership of the head of Si/Eup/Myeon.
[1] Article 326 (1) of the Civil Procedure Act / [2] Article 80 of the Registration of Real Estate Act
[1] Supreme Court Decision 91Da45608 delivered on April 28, 1992 (Gong1992, 1708), Supreme Court Decision 91Da35540, 3557 delivered on December 22, 1992 (Gong1993Sang, 543), Supreme Court Decision 96Da23092 delivered on September 20, 1996 (Gong1996Ha, 3134), Supreme Court Decision 97Da30356 delivered on November 14, 1997 (Gong197Ha, 3824) / [2] Supreme Court Decision 81Da321 delivered on January 12, 1982 (Gong1982, 255)
Young-si General Partnership (Attorney Cho Hong-soo et al., Counsel for the defendant-appellant)
Government-Si (Attorney Yoon Sang-hoon et al., Counsel for the plaintiff-appellant)
Seoul High Court Decision 97Na46377 delivered on June 4, 1999
The appeal is dismissed. The costs of appeal are assessed against the defendant.
1. Regarding ground of appeal No. 1
In principle, a document under Article 326 (1) of the Civil Procedure Act shall be submitted in lieu of the original, original, or certified copy, or in lieu of the original, if the other party acknowledges the existence or establishment of the original and objects to the original, the copy may be submitted in lieu of the original. In this case, if the original is submitted as the original, the same effect as that of the submission shall be the same. On the other hand, if the copy is submitted as the original, the copy shall not be deemed as an independent documentary evidence, but in this case, it shall be recognized that there exists the same original as the copy by evidence and the original has been duly established (see, e.g., Supreme Court Decisions 91Da45608, Apr. 28, 1992; 96Da23092, Sept. 20, 1996; 97Da30566, Nov. 14, 197).
According to the reasoning of the judgment below, the court below denied the existence of Gap evidence Nos. 4-5 (the copy of registration No. 6-8). However, according to each of the evidence No. 4-6-9, Gap evidence No. 6-1-22, Gap evidence No. 11-2, and 13-1-2, the non-party, who was the representative of the plaintiff, can be recognized as holding the original document. In light of the records, it is reasonable in light of the records, and further, according to the evidence submitted by the court below, it can be sufficiently confirmed that the original document was duly formed. Thus, the court below did not err in the misapprehension of legal principles as alleged in the grounds of appeal, since the court below acknowledged the formal evidence of the above document.
2. Regarding ground of appeal No. 2
According to the former Cadastral Act (Act No. 165 of Dec. 1, 1950), the Enforcement Decree of the same Act (Presidential Decree No. 497 of Apr. 1, 1951), and the outline of the registration of destruction or recovery of land by the Chief Justice of the Supreme Court of Oct. 15, 1952, the authority to externally prove the ownership of the land under the above outline of implementation before the amendment by Act No. 829 of Dec. 8, 1961 shall be prepared and kept in the official cadastral record, and the head of Si/Eup/Myeon in charge of the registration affairs shall keep the land register and the cadastral map, which are merely recorded in accordance with the above outline of implementation, and where the head of Si/Eup/Myeon in charge of the registration affairs, keeping the land register and the cadastral map, he/she shall be deemed to have no authority to prove the ownership of the land, and therefore it is difficult to recognize the presumption of the registration of destruction or recovery of land only based on the certification of ownership in the head of Si/Eup/Myeon (see Supreme Court Decision 8212.
According to the reasoning of the judgment below, the court below affirmed the presumption of the loss recovery registration in the name of Gyeonggi-do on the land of this case, since the public document that proves the right at the time Gyeonggi-do applied for the registration of loss recovery as of December 6, 1954 as to the land of this case, and the registration was completed by attaching only the certificate of land ownership prepared as of June 30, 1954 by the head of the Dong-gu Eup Eup, and such certificate of land ownership does not constitute a public document required by the above outline for the registration of loss recovery, namely, a certificate prepared by a public official with the authority to prove that the applicant is the owner, and thus, the registration of loss recovery in the name of Gyeonggi-do was reversed. In light of the records, it is reasonable to review this in light of the records, and there is no error of law by misapprehending the legal principles as to the presumption of
3. As to the third ground for appeal
According to the reasoning of the judgment below, the court below rejected the defendant's claim for the acquisition by prescription on the ground that Gyeonggi-do did not have any evidence to acknowledge that the defendant occupied each of the real estate in this case for a period of 20 years from April 1, 1938 to 20 years of the defendant's assertion. In light of the records, the records show that the real estate in this case was cultivated by the general public while located outside the site of the concentration center under Gyeonggi-do. Therefore, the court below did not err in matters of law such as misconception of facts against the rules of evidence, incomplete deliberation, lack of reasons, or non-exercise of the right to explanation, etc.
4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Cho Cho-Un (Presiding Justice)