[2] Whether a landowner may seek cancellation of the ownership transfer registration under the name of another person, which was made based on the cadastral map prepared to include his/her own land by mistake (negative)

[3] Requirements for exercise of right to constitute abuse of right

[4] The scope of investigation and determination by the court of final appeal

[5] Where the boundary line in the cadastral map is different from the true boundary line due to a technical error, the standard for determining the transaction object

[6] The case holding that in a case where the boundary in the cadastral map is different from the true boundary due to a technical error, there is room to deem that the land was traded on the cadastral map by mistake

[7] Whether a seller may exercise a real right claim based on a land ownership against a person who purchased a parcel of land again from a buyer who was delivered the parcel of land before the registration of ownership transfer is completed (negative)

[2] The owner of land shall not be deemed to have suffered or to have received any interference with the exercise of his/her right to the land by reason of the registration of transfer of ownership in another person's name made on the basis of the cadastral map prepared to include his/her own land by mistake. Moreover, the right to claim cancellation as a real right claim is premised on the premise that the right to claim cancellation does not coincide with the right to the real right and the registration. If the owner of land already holds the valid registration in his/her name, it cannot be said that the registration made on the basis of the cadastral map prepared by mistake is inconsistent with the right and the registration in the real right.

[3] For the purpose of the exercise of the right to be an abuse of the right, a subjective purpose of the exercise of the right is to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should not be viewed as a violation of social order. Barring such a case, even if the loss of the other party is significantly high than the profit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute an abuse of the right. However, the subjective requirement can be ratified by objective circumstances that show that the exercise of the right holder's right lacks legitimate interest.

[4] In a case where the appellate brief was filed without a statement in the grounds of appeal and the appellate brief was not timely filed, the remainder of the grounds of appeal except for the part as to ex officio investigation among the grounds of appeal are not legitimate grounds of appeal.

[5] Where a parcel of land is registered in the cadastral record as a parcel of land under the Cadastral Act, the land shall be specified by its registration unless there are special circumstances. The scope of ownership shall be determined by the boundary on the public register regardless of the actual boundary, and even if the boundary indication on the cadastral map was indicated differently from the actual boundary due to the mistake of partition surveying, etc., barring special circumstances, the transaction of the land shall be deemed to be the object of sale and purchase of the land, the boundary on the cadastral record and the boundary on the cadastral map of which scope of ownership is determined by the land regardless of the actual boundary, unless there are special circumstances, such as where the boundary line on the cadastral map was prepared differently from the true boundary line due to a technical error, so the boundary on the cadastral map becomes inconsistent with the actual boundary. However, in the preparation of the cadastral map, if there are such special circumstances, it shall be determined by the actual boundary. Thus, in the transaction of the land, the land shall be deemed to be subject to sale and purchase of the land, the boundary of ownership of which is determined by the true boundary.

[6] The case holding that in a case where the boundary in the cadastral map is different from the true boundary due to a technical error, there is room to regard the transaction of a measure based on the cadastral map drawn up by mistake as a trade

[7] Even if a purchaser of land has not completed the registration of ownership transfer, if he/she takes over the land due to the performance of a sales contract, it shall be deemed that the effect of a sales contract has the right to possess and use the land. Moreover, it is reasonable to deem that a purchaser of the land again acquires the right to possess and use the land from the purchaser. Therefore, the seller cannot exercise the right to claim a real right against the purchaser of the land again from the buyer.

1. According to the reasoning of the lower judgment, the facts and judgment acknowledged by the lower court are as follows.

A. Factual relations

Busan Shipping Daegu (No. 1 omitted) is the land owned by the Plaintiff on December 19, 1968, for which the registration of ownership transfer was made under the Plaintiff’s name on December 19, 1968. With respect to (No. 2 omitted), the registration of ownership transfer under Defendant 4, Defendant 5, and Defendant 1’s successive order with respect to (No. 3 omitted), the registration of ownership transfer under Defendant 4 with respect to the (No. 2 omitted), the (No. 4 omitted), the (No. 3 omitted), the (No. 3 omitted), and the (No. 3 omitted), with respect to the (No. 4 omitted), the registration of ownership transfer under Defendant 6, Defendant 2’s successive order with respect to the (No. 5 omitted), the (No. 4 omitted), and the (No. 175 square meters) of forest land under the name of Defendant 7, Defendant 8, Defendant 3, and Defendant 15, respectively, with respect to the ownership transfer registration under the name of Defendant 15 (No. 165).

The land Nos. 1 and 2 of this case was originally part of 163 no. 8, 163, 163, 163, 8, 14, 163, 8, 8, 801, 801, 801, 801, 801, 1924, 163, 163, 163, 163, 16, 2, 2, 301, 2, 300, 2,000, 2,000,000,000,00

The land of this case Nos. 3, 4, and 5 was originally part of the same 1, 9, 162 forest land of the same 162-1 forest land of the same 162-1 forest land of the same 162-1 forest land of the same 162-1 forest land of this case, and after the registration conversion at 3,349 square 132-2 13,349 square miscellaneous land of the same 1322-2 of the same 1322-3,349 was completed on June 5, 1968, the land of this case was 50 square miscellaneous land of the same 500 square miscellaneous land of August 5, 1968, and 500 miscellaneous land of this case was 3,4,500 square miscellaneous land of this case after the merger, division, change of land category, etc. as stated in the judgment below.

The forest land of this case, and the answer 163 and 162-1 forest land of this case were registered in the forestry map which constituted a boundary without any original overlap. However, as the above (No. 2 omitted) land was converted into 801 square meters on May 30, 1924, the part of the forest land of this case, which is the land within the boundary of the forest of this case, is indicated in the forestry map by the public official in charge of preparation of the land map, with the expansion of the attached drawing No. 1 attached to the judgment below (hereinafter referred to as the above drawing No. 1), which is the land within the boundary of the forest of this case. The part of the land of this case, which is part of the land of this case No. 3, which is the boundary of the forest of this case, was recorded in the land map of this case, which is part of the land of this case No. 3, which is the land of this case, due to the error in the boundary of the land of this case No. 4, which is part of the forest of this case No. 801, the land map of this case. 23.

Defendant 1, Defendant 2, and Defendant 3 owned each of the pertinent parts stated in the purport of the judgment of the court below, and occupied each of the relevant parts as the site for each building owned by the same Defendants. Defendant 11 occupies the part caused by the occurrence of the instant accident as the site for the building owned by the same Defendant.

B. The judgment of the court below

Based on such factual basis, the court below held that the part concerning the part concerning the unit or part concerning the unit of this case which overlaps with the entries in the cadastral map of the forest of this case in the land Nos. 1 through 5 which was made after the forestry map of this case is invalid, and the part concerning the unit or part concerning the unit of this case is owned by the plaintiff. The above part concerning the ownership transfer registration in the name of the defendants, which was made with respect to the land Nos. 1 through 5 of this case, is null and void within the scope where the land of this case or the part concerning the unit of this case is indicated in the land of this case, and it cannot be said that the above part of the land is indicated as being indicated in the registration concerning the forest of this case, which is the effective registration in the cadastral map of this case, which is the registration in the cadastral map of this case. The court below rejected all the above claim of the defendants against the defendants for the cancellation of each ownership transfer registration in the name of the defendants which was made with respect to the land of this case and the part concerning the above part concerning this case.

2. Plaintiff’s ground of appeal

A. As to the violation of the reason

According to the judgment of the court below, the court below clearly stated the purport that the defendant's appeal against the judgment of the court of first instance which accepted the plaintiff's claim for removal of the building of this case against the defendant 1, 2, and 3 is dismissed in the judgment of the court of first instance. Thus, the court below did not err in the misapprehension of the grounds of appeal as otherwise alleged in the ground of appeal.

B. As to the part of the claim for cancellation registration

According to the facts duly confirmed by the court below, each transfer of ownership in the name of the defendants as to the land Nos. 1 through 5 of this case can be seen as being indicated in the cadastral map as a result of a mistake in the cadastral map on each of the above land, which is a part of the forest of this case. However, the cadastral map drawn up by mistake as above is merely subject to correction under Article 38 of the Cadastral Act, and the registration of each transfer of ownership in the name of the defendants is eventually indicated in the land Nos. 1 through 5 of this case except for the part of the unit or part of this case, notwithstanding the entry in the cadastral map, the registration of each transfer of ownership in the name of the defendants is ultimately indicated in the land registration map, and each of the above registrations cannot be deemed as expressing the part of the unit or part of the forest of this case owned by the plaintiff (see Supreme Court Decision 95Da11252, Oct. 12, 19

Therefore, the plaintiff can not be deemed to have any interference with, or is likely to, the exercise of the rights to each of the above parts because there is a transfer registration of ownership in the above part under the name of the defendants, which does not indicate the part of the claim in this case owned by the plaintiff, and the right to claim cancellation as a real right claim is premised on the premise that the right to claim cancellation is not in accord with the actual relation of rights and registration. Thus, the plaintiff cannot be deemed to hold a valid registration under the name of the plaintiff as to the part in this case or part of the part in this case, because there is a registration under the above in the name of the defendants, and it cannot be said that there is any inconsistency with the substantive right and registration (refer to Supreme Court Decision 87Meu2528 delivered on March 13, 190). The decision of the court below which rejected the plaintiff's claim for cancellation registration against the defendants in this case, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground for appeal.

3. As to Defendant 1’s ground of appeal

A. As to abuse of rights

If the exercise of a right can be seen as an abuse of a right, a subjective purpose of the exercise of a right is to give pain to the other party and to inflict damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should be viewed as a violation of social order, and unless it does not fall under such a case, even if the loss of the other party is significantly high than the benefit the person has gained by the exercise of the right, such circumstance alone does not constitute an abuse of right (see, e.g., Supreme Court Decisions 85Da2307, Jul. 22, 1986; 87Da1712, May 22, 1990): Provided, That this subjective requirement can be confirmed by objective circumstances that show that the exercise of the right holder's right lacks legitimate interest (see, e.g., Supreme Court Decision 93Da4366, May 14, 1993).

According to the records, with regard to the land size of 122 square meters owned by the Defendant, the forest land area of this case owned by the Plaintiff is less than 60 square meters, and its shape itself is not appropriate to be used as a site for ordinary housing, etc., and the cost would be somewhat required if the part of the building owned by the Defendant on the ground of this case is demolished, and the utility of the remaining part of the building would be lost to a certain extent. However, in light of the above facts, the forest land of this case is adjacent to the land planned by the National Land Management and Utilization Act, which is located adjacent to the land planned by the National Land Management and Utilization Act, and the Plaintiff is expected to construct a building together with the owner of adjacent land (record 863 pages). The above circumstance alone is just to the effect that the purpose of the Plaintiff’s request for removal of the building of this case against the same Defendant is to cause damage to the other party, and it cannot be deemed as an abuse of rights as it does not have any profit, and there is no error of law as to abuse of rights as pointed out in the grounds of appeal.

B. As to the remainder

According to the records, there is no statement in the grounds of appeal in the petition of appeal filed by Defendant 1, and it is clear that the defendant filed the grounds of appeal only before October 26, 1997, when the appellate brief was not timely filed. The remaining grounds of appeal except for the part concerning abuse of rights, which is the matter to be examined ex officio, among the grounds of appeal by the defendant, cannot be a legitimate ground of appeal (see, e.g., Supreme Court Decisions 93Da3943, May 14, 1993; 95Da229, Feb. 9, 196; 97Da5126, Mar. 27, 1998).

4. Of the grounds of appeal by Defendants 2 and 3, as to the sale and violation of the good faith principle

According to the reasoning of the judgment below, the court below: (a) sold the land of this case, which was divided into the land of this case on September 24, 1975, 50 square meters prior to the above subdivision, to Nonparty 1; (b) purchased the land of this case from Defendant 2; and (c) completed the registration of ownership transfer under the same Defendants’ names; (d) the land of this case was included in the 500 square meters prior to the above subdivision, since the Plaintiff sold the land of this case, the Plaintiff lost ownership of each of the above land; or (e) the Plaintiff sold each of the above land to Nonparty 1, who purchased the entire land of this case, was not allowed to purchase the land of this case on the same ground that the Plaintiff sold the land of this case to Nonparty 4, which was owned by the above Defendants on the ground that the Plaintiff did not violate the principle of good faith, and thus, (e) purchased the land of this case within 50 square meters prior to the sale of the land of this case, and thus, (e.g., the Plaintiff’s sale of the land of this case to Nonparty 4).

Where a parcel of land is registered in the cadastral record under the Cadastral Act, unless there are special circumstances, the scope of ownership is specified by the registration, and the scope of ownership is determined by the boundary on the public register regardless of the actual boundary, and even if the boundary indication on the cadastral map was indicated differently from the actual boundary due to the mistake of partition surveying, barring special circumstances, the sale and purchase of the land shall be deemed to be the object of sale and purchase of the land, the boundary on the cadastral record and the boundary on the cadastral record, regardless of the actual boundary (see, e.g., Supreme Court Decisions 69Da889, 890, Oct. 28, 196; 95Da5597, 5603, Jul. 9, 196). However, in preparing the cadastral map, if there are special circumstances, such as the sale and purchase boundary on the land whose boundary line on the cadastral map was prepared differently from the actual boundary, it shall be deemed to be a sale and purchase boundary on the land, the boundary of which shall be determined differently from the actual boundary.

However, according to the facts and records duly admitted by the court below, the above part of the land was purchased on October 11, 1968 by Nonparty 2, which was 50 square meters prior to the sale and purchase of the above land, and was owned by Nonparty 4 through 4, and the land was sold to Nonparty 1 on September 18, 1975 and the registration of ownership transfer was completed on September 24, 197. The part of the above land was divided into 3 and 4, and the above part was sold to Defendant 3, which was 4, and the above part was omitted on the cadastral map 50 square meters prior to the sale and purchase of the above land was not classified into 3 and 50 square meters. The remaining part of the above land was not classified into 4 and 50 square meters prior to the sale and purchase of the above land. The remaining part of the land was not classified into 4 and 500 square meters prior to the sale and purchase of the above land. This part was also recorded in the cadastral map 16.

As such, if the remaining parts of the instant case are included in the sale between the plaintiff and the non-party 1, it shall be deemed that the purchaser of the land has the right to possess and use the land as the validity of the sales contract when the land was delivered as a result of the execution of the sale contract even if the sale contract was not completed. Moreover, it is reasonable to deem that the purchaser again purchased the land from the purchaser the purchaser the right to possess and use the land. Thus, the seller is prohibited from exercising the right to claim a real right based on the land ownership against the purchaser again (see, e.g., Supreme Court Decisions 87Meu1682, Apr. 25, 198; 92Da10197, 10203, Jul. 28, 1992; 95Da12682, 12699, Jun. 25, 1996).

Therefore, the court below should have deliberated more on this point and determined whether the land was the subject of sale between the plaintiff and the non-party 1, and after determining whether the parts were included in the B&C of this case and whether the parts were included in the above sale and the defense of violation of the good faith principle, however, the court below rejected the defendants' above defenses just because it did not reach this point, and accepted the plaintiff's claim for removal of the building of this case and the claim for delivery of land against the same defendants. Thus, the court below did not err by failing to exhaust all necessary deliberations or violating the rules of evidence, which affected the conclusion of the judgment. The part pointing this out among the grounds of appeal by the defendants is with merit.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal by Defendants 2 and 3, the part of the judgment below against the same Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal and Defendant 1’s appeal are all dismissed, and the costs of appeal regarding the dismissed appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)