Attorney Park Jong-chul, Counsel for the plaintiff-appellant

Law Firm Jungwon, Attorney Choi Han-chul, Counsel for the plaintiff-appellant

2. The Plaintiff is responsible for total costs of litigation between the Plaintiff and the Defendant.

The defendant will implement the procedure for registration of cancellation of ownership transfer registration completed on April 3, 1996 by receipt No. 18529 of the title transfer registration, which was completed on April 3, 1996, with respect to the plaintiff 152 in Daegu District Court C.

2. Purport of appeal

The text of paragraph (1) is as follows.

The plaintiff at the first instance trial against the co-defendant B (hereinafter referred to as "B") of the first instance trial on January 1, 2014, with respect to the land CJ 152 (hereinafter referred to as "the land in this case"), the plaintiff filed a claim for the cancellation registration of the ownership transfer registration under the name of the defendant, and filed a claim against the defendant for the cancellation registration of the ownership transfer registration under the name of the defendant. The first instance trial against the defendant in this case, among the claims against the defendant B, dismissed the remainder of the claims against the defendant in this case by citing only the claims against the non-indicted B (L) and 201m wide (hereinafter referred to as "the dispute part in this case"). Since the plaintiff rejected the remainder of the claims against the defendant in this case, among the claims against the defendant B, the part against the defendant in this case shall be limited to the part against which the plaintiff lost the judgment against the defendant in this case.

2. Basic facts

A. D under the assessment of the instant land on October 4, 1912, completed the registration of ownership preservation in its future on April 2, 1936, and on the same day, E completed the registration of ownership transfer on the said land on March 20, 1936.

B. The registration of ownership transfer was completed on May 8, 1942 (B, C) on the ground of sale on April 1, 1942.

C. On September 11, 1948, the Defendant completed the registration of ownership transfer (hereinafter referred to as "registration of ownership transfer of this case") on the land of this case on the ground of reversion of rights after going through the procedures for public notice of non-owned real estate under Article 8 of the State Property Act.

D. On the ground of the instant land, wooden/straw 45.5m, wooden/top 1st floor, and 27.6m of housing of 1st floor (hereinafter “instant building”). On the building ledger of the instant building, the net F stated that the net F obtained approval for use of the instant housing on 194, and obtained approval for use by extension of the said stable on 1970, and the net F had resided in the said housing and paid property tax on the said building from around 1997 to around 204 (the small amount was collected from around 2005 to around 201).

E. The Plaintiff, the deceased F’s son, was donated the instant building before the deceased on February 8, 2012 by the deceased F, and had been managing the instant building since that time, and for use and profit-making of the instant building, possessed the dispute portion of the instant building among the instant land.

[Ground of recognition] A without dispute, entry of Gap evidence 1 through 6 (including each number; hereinafter the same shall apply), Eul evidence 8, the result of the on-site inspection by the court of first instance, the result of the survey and appraisal by the first instance appraiser G, the purport of the whole pleadings

3. Determination as to the defendant's defense prior to the merits

A. Summary of the defense prior to the merits

The plaintiff asserts that in order to preserve the right to claim ownership transfer registration based on the completion of the acquisition by prescription held by the plaintiff against B as to the dispute part of this case, the plaintiff sought implementation of the procedure for cancellation registration of ownership transfer registration of this case as to the dispute part of this case in subrogation of B.

In this regard, the defendant asserts that, since the netF cannot be deemed to have purchased the land in this case, the possession of the deceased F and the plaintiff shall be deemed to have been occupied by a third party or to have waived the benefit of prescription after the expiration of the statute of limitations, and thus, the plaintiff's right to claim for ownership transfer registration against B cannot be recognized. Therefore, the plaintiff's lawsuit against the defendant in this case shall be deemed to be a principal safety defense to the effect that the plaintiff's right to claim

B. Determination

In a creditor's subrogation lawsuit, it does not interfere with the exercise of subrogation right regardless of the cause of the claim, and it does not require that the claim against the debtor can be asserted against the third debtor. Thus, if the existence of the claim is acknowledged by a favorable judgment or a judgment in favor of the debtor in relation to the debtor, the existence of the claim against the third debtor should be viewed as satisfying the requirements for subrogation without any need to verify the existence of the claim separately in relation to the third debtor. The third debtor cannot contest the existence of the right of subrogation (see, e.g., Supreme Court Decisions 87Meu961, Feb. 23, 198; 94Da39369, Feb. 10, 1995; 95Da18741, Dec. 26, 1995; 96Da10522, Mar. 27, 1998; 2000Da39799, Jun. 27, 1998).

On January 1, 2014, the first instance court accepted the Plaintiff’s claim against B with respect to the claim for the performance of the procedure for the transfer registration of ownership based on the completion of the acquisition by prescription against the Plaintiff on January 1, 2014, and the fact that the Plaintiff and B did not file an appeal against the said judgment is obvious to the court of the first instance. Therefore, the Defendant cannot contest the existence of the Plaintiff’s claim for the transfer registration of ownership based on the completion of the acquisition by prescription against the Plaintiff on January 1, 2014 as to the instant dispute. Thus, the Defendant’s safety defense is without merit.

4. Determination as to the claim on the merits against the defendant

A. The plaintiff's ground for claim

Since the part in the dispute of this case is not the property devolving upon the defendant, the registration of the ownership transfer of this case is completed on the ground that the defendant is not the property devolving upon the right, and thus, it shall be cancelled as the registration of invalidation. The plaintiff seeks implementation of the procedure for the cancellation of the registration of ownership transfer of this case as to the part in the dispute of this case by subrogation of B in order to preserve the right to claim the ownership transfer registration due to the completion

B. Determination

Where the registration of ownership transfer is completed with respect to real estate, not only the third party, but also the former owner is presumed to have acquired ownership based on the legitimate grounds for registration. Thus, the latter owner shall assert and prove the grounds for invalidation (see, e.g., Supreme Court Decisions 2010Da75648, Nov. 10, 201; 201Da75044, Jan. 10, 201; 2010Da75051, Nov. 10, 201).

(4) In light of the fact-finding survey results and the overall purport of the pleading, the following facts are as follows: (1) the defendant paid the real estate in its name on September 3, 1948, and (2) the real estate of this case to be registered in the name of "B", and the real estate of this case was recorded in the name of "1 to 9: (3) the real estate of this case was recorded in the name of "1 to 2 of this case; (4) the real estate of this case was recorded in the name of "1 to 2 of this case; (5) the real estate of this case was recorded in the name of "2 of this case; (3) the real estate of this case was not recorded in the name of "2 of this case; (4) the real estate of this case; (4) the real estate of this case was not recorded in the name of "1 to 3 of this case; and (4) the real estate of this case was not recorded in the name of "2 of this case; and (9) the real estate of this case was not recorded in the name of this case."

Even if the Defendant’s land does not fall under the property devolving upon the State and thus the cause of the registration of ownership transfer of this case is null and void, the following facts revealed in the facts: (i) the Defendant completed the registration of ownership transfer of this case due to the acquisition of property devolving upon the acquisition procedure of real estate without ownership; (ii) the Plaintiff and F entered into a loan agreement with respect to the dispute of this case, and the loan was renewed for more than 10 years; and (iii) the loan agreement has been renewed for more than 10 years; (iv) the Defendant started possession without negligence and continued possession of the dispute of this case through the deceased F or the Plaintiff from January 1, 2004, which entered into the loan agreement with the deceased F or the Plaintiff, and the possession was completed for more than 10 years; and therefore, the acquisition by prescription of the registry of this case was completed on January 1, 2014 after 10 years from the date of possession of the dispute of this case. Therefore, the Defendant’s assertion that the acquisition by prescription is valid is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the defendant shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the defendant among the judgment of the court of first instance shall be revoked, and the plaintiff's claim against the defendant corresponding to the revoked part shall be dismissed, and it is so decided

Judges Kim Jong-il

Judges Shin Jin-jin