[소유권이전등기말소][공1995.8.1.(997),2552]
(a) The relationship between each registration for preservation of ownership and each transfer of ownership, the registration of which has been made in duplicate with respect to the same real estate;
(b) Criteria to determine the friendlyness of the registration of each transfer of ownership restored after loss;
A. In a case where a registration of initial ownership has been made overlapping with the former registration titleholder on the same real estate, it is reasonable to interpret that the registration of initial ownership is null and void under the current Registration of Real Estate Act adopting the first registration form for the first real estate, even though the registration of initial ownership does not become null and void. As such, in a case where a registration of initial ownership is made based on overlapping registration of initial ownership on the same real estate and different registration titleholders, each registration is not to be determined after the date of the registration of initial ownership transfer, but to be based after each registration of initial ownership transfer, which is based on the first priority of the registration of initial ownership transfer. Such a legal principle likewise applies in a case where the overlapping registration form becomes null and void and void after all overlapping registration forms a duplicate registration form.
B. In the event that one registration of ownership transfer was made on the same real estate after the registration of ownership transfer was made, and the registration of ownership transfer was made on the basis of the order, and the registration of ownership transfer was destroyed and the registration of ownership transfer was made on the basis of the order above, the problem of duplicate registration is not created, and as such, since the registration of ownership transfer was the recovery of ownership transfer registration that was prior to the destruction, the registration of ownership transfer registration of the next time becomes null and void. Therefore, if each registration of ownership transfer, which was based on each ownership transfer registration restored after the destruction, is identical registration or duplicate registration, or if duplicate registration was made, it is not known at the time when each registration of ownership transfer registration was made, each registration of ownership transfer restored after the destruction, cannot be raised.
Articles 15, 24, and 79 of the Registration of Real Estate Act
[Plaintiff-Appellant-Appellant-Appellee] Plaintiff 1 and 1 other (Law No. 4508, Nov. 27, 1990) (Law No. 1993, Nov. 27, 1990) (Law No. 1993Sang, 960, 1960) (Law No. 1995Sang, 1960)
Plaintiff 1 and one other, Plaintiffs Kim Il-chul, Counsel for the plaintiff-appellant-appellant
Defendant 1 et al., Counsel for the defendant-appellant and one other, Counsel for the defendant-appellant-appellee)
Seoul High Court Decision 94Na9643 delivered on September 6, 1994
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
The grounds of appeal by the plaintiffs and their attorneys are also examined.
1. Summary of the judgment below
The court below held that the above registration of the non-party 1 was invalid on December 30, 1954 on the non-party 2's △△-ri (number 1 omitted), and that the non-party 1 was deceased on March 30, 1985, and that the non-party 2 was his wife, and that the non-party 1 was his wife and the non-party 2 was his wife, and that the non-party 4 was invalid on April 12, 1954 (number 2 omitted), and that the non-party 5's restoration registration was invalid on the non-party 1's △△-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si's restoration registration was invalid on the grounds that the non-party 2 had no specific reasons for the above cancellation of the registration (number 2 omitted). The non-party 2's forest land number omitted.
2. Judgment on the grounds of appeal
A. As to the misapprehension of legal principle
Where a registration of initial ownership has been made in duplicate with different persons registered as to the same real estate, the registration of initial ownership should be interpreted as null and void under the current Registration of Real Estate Act, which adopts the first registration form for one real estate (see, e.g., Supreme Court Decision 87Meu2961, 87Da453, Nov. 27, 1990; Supreme Court Decision 89Meu19610, Nov. 27, 1990; etc.). If a registration of initial ownership is made in duplicate with regard to the same real estate, each registration shall not be determined after the date of the registration of initial ownership transfer, but shall be determined based on each prior date of the registration of initial ownership transfer, which is based on the registration of initial ownership transfer, unless the registration of initial ownership transfer becomes null and void. This legal doctrine applies likewise to cases where the registration already completed prior to the destruction of the original registration after all the overlapping registers have been destroyed.
On the other hand, in the event that one registration of ownership transfer was made on the same real estate and the registration of ownership transfer was made on the basis of the same registration, and the registration of ownership transfer registration was made on the basis of the same registration, and the registration of ownership transfer registration was made on the basis of the same registration, the problem of overlapping registration is not created, and therefore, the registration of ownership transfer registration of the vehicle prior to the destruction will not be invalidated.
Therefore, in the case of this case, if each registration of ownership transfer, which was based on each registration of ownership transfer restored after the destruction, is the same registration or duplicate registration, and if each registration of ownership transfer was made at any time, the priority of each registration of ownership transfer restored after the destruction cannot be added due to the date of receipt of each registration of ownership transfer restored after the destruction, the date of receipt of each registration of the former registration, or the date of the cause of each former registration.
Therefore, in the judgment of the court below that the ownership transfer registration in duplicate should be effective after the pre-registration of the restoration, the decision of the court below did not err by misapprehending the legal principles on the above duplicate registration of the ownership transfer restoration, but it is just in rejecting the plaintiffs' assertion that the priority of the registration of the restoration overlap after the pre-registration of the transfer before and after the destruction should be raised.
We cannot accept this argument.
B. Regarding mistake of facts
Examining the evidence prepared by the court below in accordance with the records, the court below's rejection of the plaintiffs' assertion that the registration of restoration of name, such as the above non-party 2, on the forest land of △△△ (number 2 omitted) is null and void is just and there is no error of law by misconception of facts against the rules of evidence as alleged in the lawsuit
3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Cho Chang-tae (Presiding Justice)