[소유권보존등기말소][공1993.9.1.(951),2098]
Whether ownership shall be lost in cases where forest land is transferred pursuant to the Ordinance on Special Domination of Shipbuilding (Ordinance No. 7 of April 5, 155), but the ownership shall not be transferred by December 31, 1965 (affirmative)
In the case of the transfer of forest land under the Decree on Special Domination of Shipbuilding (Ordinance No. 7 of April 5, 155), the said transfer is not a “acquisition of real rights by law” under Article 187 of the Civil Act, and thus, if the transferee or the heir did not register the transfer of ownership by December 31, 1965, the said transfer shall lose its ownership in accordance with Article 10(1) of the Addenda of the Civil Act.
Article 187 of the Civil Act; Article 10(1) of the Addenda to the Civil Act ( February 22, 1958); Article 1 of the Decree on the Transfer of Afforestation Special Afforestation (Abolition)
Supreme Court Decision 67Da1115 delivered on February 10, 1970, Supreme Court Decision 92Da14465 delivered on June 25, 1993
Plaintiff 1 et al., Counsel for the plaintiff-appellant
Defendant 1 and nine others, Attorneys Kim Tae-tae, Counsel for the defendant-appellant
Seoul High Court Decision 90Na56610 delivered on February 12, 1992
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
1. Regarding ground of appeal No. 1
The court below rejected the primary claim on the premise that the plaintiffs lost their ownership pursuant to Article 10 (1) of the Addenda of the Civil Act, as long as the non-party 1 or his heir did not register the ownership of the forest of this case by December 31, 1965, because the non-party 1 was transferred the forest of this case under the Ordinance on the Special Domination and Domination (Ordinance No. 7, Apr. 5, 155, 195), but the above concession is a kind of gift not the "acquisition of real right under the provisions of law" under Article 187 of the Civil Act. Thus, it is justified that the plaintiffs lost their ownership pursuant to Article 10 (1) of the Addenda of the Civil Act (see Supreme Court Decision 67Da115, Feb. 10, 1970). There is no reason to misunderstanding the legal principles on the above concession.
2. Regarding ground of appeal No. 2
The court below rejected all the plaintiffs' assertion that registration of preservation of ownership or transfer of ownership has been made in the name of the deceased non-party 1, or that the deceased non-party 2 or the plaintiffs occupied the forest of this case, and there is no illegality such as the theory of lawsuit, and there is no reason to discuss.
3. As to the third ground for appeal
The argument that Article 10 (1) of the Addenda to the Civil Code is in violation of the Constitution of the Republic of Korea is just and it cannot be a legitimate ground for appeal, and the supplementary clause to the Civil Code cannot be seen as a violation of the Constitution of the Republic of Korea. Therefore, there is no reason for the argument.
4. Accordingly, all appeals are dismissed, and the costs of appeal are assessed against the losing plaintiffs. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice)