[소유권이전등기말소][집34(1)민,139;공1986.5.15.(776),686]
Where real estate owned by Japan has been purchased before August 9, 1945 and provisional registration has been made, the ownership attribution relationship
In a case where a real estate owned by Japan prior to August 9, 1945 was purchased and a provisional registration for preserving the right to claim ownership transfer is made, the purpose and effect of provisional registration is to preserve the order retroactively in the form of a provisional registration date, and it is not to acquire any new right, but to perform the principal registration procedure as a matter of course on the ground that the provisional registration was made. Thus, the above real estate in the name of Japanese owner as of August 9, 1945 is naturally reverted to the property under the name of Japanese owner pursuant to subparagraph 2 subparagraph 33 of the U.S. military law, and the buyer cannot claim ownership unless the adjudication on the cancellation of the reversion of the property petition committee or the final and conclusive judgment is made pursuant to subparagraph 103 of the U.S. military law, and even if the principal registration procedure based on the provisional registration has been completed thereafter, the ownership transfer registration cannot be said to be advanced to the right.
No. 2, 33, 103 of the U.S. military statutes
Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant
Plaintiff’s Intervenor Kim Hong-hoon, Counsel for the plaintiff’s Intervenor
Korea Life Insurance Co., Ltd. and 78 others, Counsel for the plaintiff-appellant and 3 others
Seoul High Court Decision 82Na988 delivered on June 14, 1984
The judgment below is reversed and the case is remanded to Seoul High Court.
[Defendant-Appellee] Plaintiff 1 and 3 others (Attorney Kim Jong-young, Counsel for defendant-appellee)
1. Ground of appeal No. 1
1. According to the reasoning of the judgment of the court below, the above non-party 1 (except for the above non-party 2 list 8,9) was originally owned by the non-party 1 (OOO), Japan. The non-party 2 agreed to purchase the above land on January 8, 1942 and made a provisional registration of the right to claim ownership transfer transfer registration on the non-party 3's land under the name of the non-party 1 (OOO), the non-party 4 was the non-party 2's ownership transfer registration of the above non-party 9's ownership transfer registration of the non-party 9's non-party 1 (OOOO). The non-party 2 decided that the non-party 9's ownership transfer registration of the non-party 4 had already been completed on the non-party 1, 942's ownership transfer registration of the non-party 1, the non-party 4 and the non-party 9's ownership transfer registration of the above land will be delivered to the non-party 1.
2. Therefore, if we gather that the title of real estate in the name of Japanese government and the first agreement on the financial and property between the Government of the Republic of Korea and the Government of the United States of America as of August 9, 1945 is attributed to the United States Armed Forces, and the person who has an objection thereto belongs to the United States Armed Forces and is subject to the confirmation of the cancellation of reversion from the Ministry of Justice by filing a petition with the Appellate Committee, and if the real estate is not in accordance with the procedure, the title of the real estate was finally reverted to the United States Armed Forces and is transferred to the Government of the Republic of Korea after the establishment of the Republic of Korea.
As of August 9, 1945, the land of this case, which was registered for transfer of ownership in the name of the above non-party 1 in Japan, was owned by the above non-party 2 and 33 of the military laws and regulations of the United States, and the ownership of the land of this case was acquired by the above non-party company in a hostile relationship with the above non-party 1 in Japan, but if the non-party 1 acquired the ownership of this case but failed to meet the requirements for counterclaim, the appeal or lawsuit aimed at the cancellation of ownership should be filed with the Property Appeal Committee or the Joseon Court until August 31, 1948. However, it is clear that the non-party 1, who did not take the above-style procedure, fully
On the other hand, a provisional registration aimed at preserving the right to claim ownership transfer registration is to preserve the order retroactively in the form of a provisional registration in the form of a provisional registration, and the purpose and effect of a provisional registration is nothing more than to obtain any new right, but it does not naturally result in the obligation to implement the principal registration procedure. Thus, as determined by the court below, even if the above non-party company registered in the name of the above non-party 1 for the real estate was registered a provisional registration on February 2, 1943 for preserving the right to claim ownership transfer registration, but the principal registration procedure is completed on May 14, 1963, the above provisional registration is to obtain a decision or final and conclusive judgment on the cancellation of ownership due to a petition or lawsuit filed until August 31, 1948, and the above non-party company, which failed to take such procedure, cannot assert its ownership.
In the end, the decision of the court below, which held that the registration of ownership transfer on February 2, 1943, based on the provisional registration of the name of the non-party company above as of February 2, 1943, is prior to the reversion of the rights to the plaintiff, is erroneous in the misapprehension of legal principles as to the property devolving upon the property devolving upon the plaintiff, and such unlawful act constitutes a ground for reversal under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and therefore there is a reason for appeal.
2. Ground of appeal Nos. 2 and 3
1. According to the reasoning of the judgment below, the court below rejected the plaintiff company's claim that the non-party company, which is subject to the application of the Commercial Act pursuant to Article 55 of the State Property Act, is an enterprise belonging to the State pursuant to Article 60 (1) of the Enforcement Decree of the same Act (amended by April 16, 1982) and designated by the Office of General Administration. Thus, the non-party company is a profit-making corporation established in Korea prior to August 9, 1945, in which a considerable portion of shares were belonging to the Japanese citizens, and is merely belonging to the State pursuant to Article 2 (3) of the Enforcement Decree of the Act on the Disposal of Property Belonging to the State, and is not subject to Article 61 of the State Property Act because the non-party company holds more than half of shares and is designated by the Presidential Decree. Thus, the non-party company is not subject to the determination of distribution and distribution method of residual assets pursuant to Article 55 of the State Property Act and Article 61 (1) 5 of the Enforcement Decree of the same Act.
2. However, Article 2(3) of the Reversion Act provides that a profit-making corporation or a cooperative, which was established in Korea prior to August 9, 1945 in which shares or equities were owned by a Japanese institution, shall be deemed to have accrued its shares or equities. Meanwhile, Article 55 of the State Property Act provides that a special case concerning liquidation procedures of a company, more than half of shares or equities are held by the State, and Article 60(1) of the Enforcement Decree of the State Property Act (the Presidential Decree No. 8598 of Jun. 13, 197) provides that the scope of the company subject to the application of the Commercial Act pursuant to Article 55 of the State Property Act shall be attributed to the State pursuant to the Reversion Act and designated by the Office of General Administration. According to the determination of the court below, the above non-party Dail Agriculture and Forestry Co., Ltd. was established pursuant to the domestic law of April 10, 194, which was established pursuant to the non-party 37, 4000 shares or shares owned by the plaintiff 2.
3. It is difficult for the court below to hold that the provision of the Act on the Disposal of Property Belonging to the State is a domestic corporation established in the Republic of Korea prior to August 9, 1945 and the shares of the corporation belonging to the Japanese institution and its national organization belong to the State. Therefore, the concept of the so-called enterprise belonging to the State at the time of the adjudication of the State of Seoul is nothing more than the legal ground, and if the property itself belongs to the State, for example, if the corporation established in Japan and the company belonging to the Japanese institution and its national organization belongs to the State, the real estate itself belongs to the State in accordance with the first agreement on the finance and property between the Government of the Republic of Korea and the Government of the United States, and the Government of the Republic of Korea and the Government of the United States of America, it cannot be deemed that the real estate itself belongs to the State or that it belongs to the State in accordance with the above special provision of the Act on the Settlement of State Property, etc.
In the end, there is a reason for the appeal that the above measures of the court below were derived from the misunderstanding of the legislative intent of Article 55 of the State Property Act and Article 60 (1) of the Enforcement Decree of the same Act and the legal principles of Article 2 (3) of the Act on the Disposal of Property Belonging to the State Property.
§ 3.
Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Chang-chul (Presiding Justice)