1. A;

2. B

3. C.

4. D;

5. E.

[Defendant-Appellant] Defendant 1

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Lee Hong-hoon, Lee Song-hoon, Kim Yong-ap, Korea Index

1. Case summary

A. On September 8, 1913, L was assessed on each of the lands listed in the separate sheet of the lower judgment (hereinafter “each of the lands in this case”) on September 8, 1913 (hereinafter “each of the lands in this case”) according to the sequences in the above list.

B. The registry, official cadastral record, etc. on each of the instant lands were destroyed due to the incident of June 25, and thereafter restored, it was entered that the owner was restored by T which is the defendant's reference, or M which was already deceased, rather than the nominal owner. As to the instant land No. 1, the Defendant was in accordance with the former Act on Special Measures for the Registration, etc. of Ownership Transfer of General Farmland (Act No. 1657) on June 4, 1965, and as to the instant land No. 2, pursuant to the former Act on Special Measures for the Registration, etc. of Ownership of Forest Land (Act No. 2111, Oct. 31, 1970), and completed each registration of ownership preservation.

C. On the other hand, on February 2, 2010, the Defendant sold to AA a total of KRW 1,101,60,000 for the price of KRW 1,101,60,000 for the land of this case, which is part of the land of this case, AB, 3954 square meters prior to AB, and AC Forest 5326 square meters, a part of the land of this case 2.

D. As to the part remaining in the name of the Defendant among each of the instant land against the Defendant, the Plaintiffs, who were the successors of the above L, filed a claim for the cancellation of registration of preservation of ownership, and the Defendant filed a claim for the payment of money equivalent to the purchase price received by the Defendant with respect to each of the instant land. The lower court accepted the claim for cancellation of registration of preservation of ownership

2. As to the Defendant’s ground of appeal on the claim for cancellation of registration of preservation of ownership

A. The lower court determined that the Defendant’s registration of preservation of ownership of each of the instant lands was made in violation of each of the aforementioned special measures, which was enforced at the time, and there was no presumption of right, since the restoration of the owner of each of the instant lands via T or M was arbitrarily made by the competent authority for administrative convenience without any legal basis before the enforcement of the Cadastral Act amended by Act No. 2801, Dec. 31, 1975. Furthermore, the Defendant’s assertion that each of the instant lands was donated by L directly or in succession from L was rejected.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine or failing to exhaust all necessary deliberations.

B. Although the Defendant alleged that each of the instant lands was donated by the Defendant, prior to the closing of argument in the lower court, as land of the nature of the mountain and the upper soil, the Defendant did not assert that each of the instant lands fell under “dive forest” under Article 1008-3 of the Civil Act and “farmland as a gravetory” and that he succeeded to the ownership of a grave pursuant to Article 1008-3 of the Civil Act. Such assertion and the assertion of prescriptive acquisition was made only after the closing of argument in the lower court. Therefore, the lower court did not err by omitting judgment or failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of

3. As to the plaintiffs' grounds of appeal on the claim for monetary payment

A. In a case where an unentitled person disposes of another person’s right in his/her own name or as his/her own right, the rightful person may recognize the act of disposal by ratification, and in such a case, the validity of the said act of disposal takes effect to the rightful person, barring any special circumstances. Ratification may be made explicitly, as well as explicitly and implicitly, and such declaration of intent may be made only by the unentitled person or the other party. In such a case where the rightful person has ratified the act of disposal by the unentitled person, the rightful person may seek the return of the benefit gained from the act of disposal by the unentitled person against the unentitled person (see, e.g., Supreme Court Decisions 92Da1550, Sept. 8, 1992; 2001Da4291, Nov. 9, 2001).

B. The lower court upheld the first instance judgment dismissing the Plaintiffs’ claim seeking compensation for damages or return of unjust enrichment, on the ground that if it is possible for the Plaintiffs to seek the cancellation of the ownership transfer registration of a third party, which was completed based on the Defendant’s registration of preservation of ownership and the Defendant’s registration of preservation of ownership, the ownership cannot be deemed as have been finally lost or infringed.

However, in the instant case, the Plaintiffs sought cancellation of the Defendant’s registration of preservation of ownership only with respect to the land excluding the part sold among each of the instant lands, and sought compensation for damages or restitution of unjust enrichment with respect to the part sold among each of the instant lands by the Defendant. It is deemed that the Plaintiffs implicitly ratified the Defendant’s sale, who is an unentitled person.

There is room for room.

The court below should determine the legitimacy of the Plaintiffs’ claim for monetary payment on the premise of ratification of the Defendant’s disposal act.

C. Nevertheless, the lower court erred by misapprehending the legal doctrine as to ratification of an act of disposal by an unentitled person, thereby failing to exhaust all necessary deliberations. The Plaintiffs’ ground of appeal assigning this error is with merit.

4. Conclusion

The part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan