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(영문) 서울고등법원 춘천재판부 2014.7.28.선고 2013나695 판결

소유권말소등기

Cases

2013Na695 Registration of Cancellation of Ownership

Plaintiff and Appellant

Pyeongtaek-gun

Defendant, Appellant

Korea

The first instance judgment

Chuncheon District Court Decision 2010Gahap219 Decided July 22, 2010

Judgment before remanding

Seoul High Court Decision 2010Na1475 Decided September 28, 2011

Judgment of remand

Supreme Court Decision 2011Da93391 Decided March 28, 2013

Conclusion of Pleadings

July 14, 2014

Imposition of Judgment

July 28, 2014

Text

2. The defendant shall be the plaintiff.

(a) completed on January 13, 1996 in receipt No. 264 of receipt on January 13, 1996 with respect to each real property listed in the separate sheet Nos. 3 through 6;

B. completed on February 28, 1997 by the same registry office with respect to the real estate listed in paragraph 10 of the attached list as the receipt of No. 2522 of the attached list;

(c) completed on June 22, 2007 at No. 20380 of the receipt on June 22, 2007 with respect to real estate listed in paragraph 11 of the Schedule;

The registration procedure for cancellation of each registration of preservation of ownership shall be implemented.

3. The total costs of the lawsuit except for the costs of the appeal dismissed in the final appeal are assessed against the defendant.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim:

The Defendant

(1) With respect to each real property listed in the separate sheet Nos. 1 to 6, the Chuncheon District Court Bupyeong Branch Office

completed on January 13, 1996 under No. 264;

(2) The same registry office with respect to each real estate listed in [Attachment 7 to 9] list 207, 23 October 23.

completed under No. 31810:

(3) The receipt on February 28, 1997 by the same registry office with respect to the real estate stated in paragraph (10) of the attached list

2522 Of course:

(4) On June 22, 2007, receipt on June 22, 2007

as completed in 20380:

(5) With respect to the real property listed in paragraph (12) of the attached list, the receipt of 10,21.

12342

The registration procedure for cancellation of each registration of preservation of ownership shall be implemented.

B. Preliminary claim:

The Defendant, as the Plaintiff

(1) On May 1, 2009, with respect to each real estate listed in [Attachment 1, 4, and 5] List 1, 2009

only, in the case of

(2) The grounds for the prescriptive acquisition on February 7, 199 with respect to each real estate listed in [Attachment 2 and 12] list

Korea, -

(3) On July 20, 1982, acquisition by prescription on each real estate listed in [Attachment 3, 6, 10, 11] list

on the grounds of subparagraph (b);

(4) On September 2, 1986, as to each real estate listed in [Attachment 7, 8, and 9] List, the acquisition by prescription shall be conducted on September 2, 1986.

only, in the case of

Each procedure for the registration of ownership transfer shall be implemented.

[Plaintiffs] The real estate listed in the separate sheet (Provided, That paragraph 6 of the separate sheet)

Real estate shall be 37,289 square meters out of 17,857,109 square meters in Dagwon-si, Seogwon-gun, Seogwon-gun.

17,857,109 shares) withdraw each claim for the confirmation of ownership in respect of shares,

Chuncheon concerning the portion of 37,289 17,857,109 shares of 410 forest No. 410 forest No. 17,857,109

claim for cancellation of registration of ownership preservation completed on January 13, 1996 by Pyeong Changwon registry office, Pyeong Changwon, 264;

Receipt on January 13, 1996 by the Pyeongtaek District Court of Chuncheon on the real estate stated in paragraph 6 of the attached list

change from an exchange to a request for cancellation of registration of preservation of ownership completed under section 264 to its primary purpose;

(3) Transfer of ownership, etc. due to the prescriptive acquisition of each real estate listed in the separate sheet

The claim was added to the preliminary claim

2. Purport of appeal

The judgment of the court of first instance shall be revoked. In lieu of the real estate listed in paragraph (6) of the attached Table 6, the dialogue of Gangwon-gu.

To seek 37,289/17,857,109 shares among 17,857,109 square meters of a new 410 forest

In addition, it is identical to the primary claim.

3. Scope of the trial of the political party after remand.

The judgment of the court before remanding the real estate in the annexed list 1 through (5), 7 through 12 of the plaintiff.

an appeal against each primary claim in respect of the case, and at the trial of the real estate listed in paragraph 6 of the attached Table.

(1) In the case of each of the real property listed in the separate sheet and whose primary claim has been changed to exchange;

each conjunctive claim was dismissed. Only the plaintiff was dismissed from Nos. 3 to 6 in the annexed sheet 3 to 6;

An appeal on each part concerning real estate in 10,11 was filed by the Supreme Court, and the Supreme Court made the appeal by the plaintiff.

Appellate Court's acceptance of the judgment of the party before remanding each of the annexed Schedules 3 through 6, 10, 11

Since the part on mountain is reversed and remanded to the party member, the plaintiff's claim of this case is pending.

The part concerning each real estate listed in the table 1, 2, 7 through 9, and 12 in the attached list was finalized.

Therefore, the subject of the trial after remand is subject to the trial after remand 3 to 6, 10 of the attached list among the claims of this case.

11 The parts concerning each of the real estates mentioned above are limited.

Reasons

1. Basic facts

A. The original register, cadastral record, etc. concerning the land located in the Pyeongtaek-gun of Gangwon-gu was destroyed when the incident occurred.

B. On June 15, 1954, on the 1954, the dialogue of Pyeongtaek-gun: (i) 287-1 forest 9 m287-1 forest m2, (ii) 640-1 forest m2, 640-1 forest m2, 732-1 forest 8 m2, 32-1 forest m2, 8 m2 (37,686.12m) was not preserved on June 28, 195, and the registration of preservation of ownership was not made on June 28, 1954, 3 m28 m2, 36 m2, 36 m25 m2, 46 m2, 36 m2, 46 m2, 36 m2, 46 m2, 46 m2, 360 m2, m25 m2, 364 m2.

C. In accordance with Article 8 of the former Act on Temporary Measures for Local Autonomy (Act No. 707 of Sep. 1, 1961), the Plaintiff completed the registration of ownership transfer with respect to the above forest land on July 20, 1962 on the ground that the ownership of the forest land was reverted to the Plaintiff after the division of this case, according to the provisions of Article 8 of the former Act on Temporary Measures for Local Autonomy (Act No. 707 of Sep. 1, 1961).

D. The administrative agency is based on the forest land level, etc. prepared at the time of the forest survey project between January 15, 1971 and October 19, 1976, based on the forest land level, etc. < Amended by Act No. 2872, Dec. 37, 1977; Act No. 37,686m2 (attached Table 3); Act No. 640, Jun. 6, 1945>

(B) On August 19, 2005, on August 19, 2005, the area was corrected to 4,372 square meters of land and 4,372 square meters, and the area was divided after registration conversion and 4,5 in the annexed list Nos. 5) <3, 37,289 meters of forest land No. 732, 732, 77,289 meters in the dialogue between Gangwon-gun, Gangwon-do (the part of forest land listed in the annexed list No. 6 was classified as a result of a subsequent merger), 4, 39,570 meters in the Pyeongtaek-gun, Seowon-gun, Sejong-gun, Seowon-gun (attached list No. 10 in the annexed list No. 839,570 meters), 5, 000, 000, 465,752 square meters in the annexed list (attached Table No. 11).

E. From January 13, 1996 to June 22, 2007, the Defendant issued a registration of preservation of ownership by virtue of the following provisions: (a) the forest that was already restored as above (hereinafter referred to as “the forest before the instant subdivision”) to each forest that was cadastrally restored (hereinafter referred to as “the forest before the instant subdivision”).

[Evidence] In the absence of dispute, Gap evidence No. 1-3 through 6, 10, 11, Gap evidence No. 2-3 through 6, Gap evidence No. 3-1 through 4, Gap evidence No. 19, 45, Gap evidence No. 47-1 through 5, and the purport of the whole pleadings

2. The validity of the registration under the Plaintiff’s name concerning forest land after the instant partition;

Where any real estate has been registered, it shall be presumed that it has been duly made in the cause and procedure unless there are any special circumstances, and where a registration for preservation of right has been made for any real estate, and where the official cadastral record of the land is not kept in the management agency at the present time, it is reasonable to deem that the official cadastral record was kept at the time of the registration for preservation (see, e.g., Supreme Court Decision 95Da14794, Jul. 30, 1996).

According to the above facts, the registration of preservation of ownership in the name of Pyeongtaek-gun, Gun, and Do shall be deemed to have been completed before the initial six to twenty-five incidents. According to Articles 105 and 107 of the Registration of Real Estate Act, the registration of ownership in the name of Gun shall be accompanied by a certified copy or judgment with the proof that ownership is owned by the applicant. In addition, according to Articles 1 and 2 of the former Rules of the Forestry Register (No. 113 of the Ordinance of the Ministry of Shipbuilding No. 113 of August 23, 1920), which shall apply mutatis mutandis pursuant to Articles 1 and 2 of the former Rules of the Forestry Register (No. 73 of the Ordinance of the Ministry of Shipbuilding), the registration of preservation of ownership in the name of Gun shall be deemed to have been completed before the initial six to twenty-five incidents. Since the registration of ownership in the name of the Gun shall be kept before the subdivision of the forest and the forest shall be separately stated in the annexed Form 7 of the Forestry Register.

Therefore, it is reasonable to view that the registration of the Plaintiff’s name on the forest land after the instant subdivision is valid after the instant subdivision, which was divided through the lawful subdivision procedure, and the forest land division and the subsequent forestry map was prepared.

3. The legality of the cadastral restoration on the forest before the instant partition

Examining the method of setting a parcel number at the time of land division at the time of each registration of initial ownership of the Plaintiff’s forest land before the division, the annexed Form 7 of the Enforcement Rule of the District Tax Decree (Ordinance No. 73 of the Ministry of Shipbuilding No. 73 of July 17, 1918) and the survey drawings to be attached thereto, when the land stipulated in Article 12(2) of the Enforcement Rule of the District Tax Decree is divided, shall be indicated as follows: “126,15-2176 square meters after this subdivision,” and “15-1, 15-2176 square meters after this subdivision,” barring any special circumstance, if the main number of the forest land is subdivided, the main number shall be posted to the next main number, “1, 2-2, etc.” and even in this case, it is reasonable to deem that the forest land before the division was closed after the subdivision of the forest land before the division (see, e.g., Supreme Court Decision 25Da4234, Apr. 28, 1995).

Therefore, it is reasonable to view that the cadastral restoration on the forest land before the division of this case is unlawful, since it was made by setting the main number already closed according to the subdivision of this case.

4. The identity of the forest before and after the instant partition;

As seen earlier, if the cadastral restoration of the woodland before the division is deemed unlawful, it shall be deemed that the woodland registered under the Plaintiff’s name is identical to, or at least part of, the woodland already restored before the division. In other words, the difference between the woodland before the division and the woodland after the division is merely 13.4% or 1% on the basis of the woodland before the division, and the difference between the area of the woodland after the division is not high, as well as the area may vary depending on the point of surveying, even if the woodland is the same as the land after the development of surveying technology, the woodland registered under the Defendant’s name was recognized as the woodland after the division of this case, the registration was made under the Plaintiff’s name at the time of the division of this case, the registration was made under the Plaintiff’s name at the time of the 6th of the 3th of the 4th of the 7th of the 4th of the 7th of the 7th of the 7th of the 7th of the 7th of the 196th of the 2th of the 2th of the 2th of the 3th of the 10th of the new forest land.

Therefore, each registration of ownership transfer in the name of the defendant with respect to the forest land before the division of this case and each registration of ownership transfer in the name of the plaintiff with respect to the forest land after the division of this case shall be deemed as duplicate registration with respect to the same real estate. Thus, unless the registration of ownership transfer in the name of the plaintiff, which was completed first in time, becomes null and void, the registration of ownership transfer in the name of the defendant last completed later in time shall be deemed null and void. Therefore, the defendant is obligated to implement each registration procedure for the last time of the

5. Conclusion

Therefore, the plaintiff's main claim regarding each real estate listed in the annexed list Nos. 3 through 6, 10, 11 is justified, and the judgment of the court of first instance is unfair with different conclusions. Thus, this part is revoked by accepting the plaintiff's appeal and it is so decided as per Disposition by accepting the part of the plaintiff's claim.

Judges

Gender written text (Presiding Judge)

Freeboard

Lee Tap-ap

Site of separate sheet

Table 3

(Elimination of List)

A person shall be appointed.

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