Whether the registration made after the death of the person liable for registration has been presumed to have been proven, under the condition that the cause for registration exists before the person liable for registration dies (affirmative)

A registration made by an applicant for registration in the name of a deceased person may not be recognized as a constructive effect of registration as a registration invalidation of cause for registration. However, even though a cause for registration exists, if a decedent is living in the area of a person liable for registration or a person liable for registration and an heir files an application for registration pursuant to Article 47 of the Registration of Real Estate Act, such registration shall not be deemed null and void. Thus, even if a registration made by the person liable for registration who died, if there are circumstances such as the existence of cause for registration prior to the death of the person liable for registration, such registration shall be presumed to have been duly completed in accordance with the above procedure,

Article 186 of the Civil Act, Article 47 of the Registration of Real Estate Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff 1 and four others (Attorneys Hong Hong-soo et al., Counsel for the plaintiff-appellant)

Defendant

Seoul District Court Decision 94Na52743 delivered on October 20, 1995

The part of the lower judgment against the Defendant regarding the registration of transfer of ownership is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. The remainder of the Defendant and the Plaintiffs’ appeals are dismissed. The costs of appeal to the Supreme Court are assessed against

1. First, we examine the Defendant’s grounds of appeal.

According to the reasoning of the judgment below, the court below found the following facts based on the evidence of Si, that the forest of this case for which the transfer of ownership was made under the name of the non-party, was registered, and the provisional registration for preserving the right to claim the transfer of ownership under the name of the defendant was made on the same day as the receipt No. 40651 on July 26, 1972, and the provisional registration was made on April 26, 1979 on the basis of the above provisional registration, and the registration for transfer of ownership under the name of the defendant was made on October 26, 1972 on the ground that the above non-party died on November 25, 1975, and thus the plaintiffs became his co-inheritors. Accordingly, the court below held that the above registration for transfer of ownership under the name of the defendant, which was completed in the forest of this case, was null and void since the above non-party, who is the person liable for registration of the transfer of ownership was already deceased.

A registration made in accordance with an application for registration under the name of the deceased may not be deemed void if there is no room for recognizing the legal capacity of registration as a registration invalidation (see, e.g., Supreme Court Decision 83Meu597, Aug. 23, 1983). However, even though a cause for registration exists, if an ancestor is alive in the course of failing to file an application for registration, the registration filed by the decedent may not be deemed void if the heir files an application for registration under Article 47 of the Registration of Real Estate Act (see, e.g., Supreme Court Decisions 8Da29986, Oct. 27, 1989; 94Da23999, Feb. 28, 1995). However, even if a registration made by the deceased person is made by the person liable for registration, if there are circumstances such as the existence of the cause for registration prior to the death of the person liable for registration, such registration shall be presumed to have been duly made in accordance with the above procedure, and its legal capacity of registration cannot be denied.

On October 26, 1972, the registration of transfer of ownership in the defendant's name as to the forest of this case was entered as sale and purchase on October 26, 1972, which was before the death of the non-party above on the registry, and although the cause for registration is presumed to have already existed before the death of the non-party above on the registry, the court below denied the presumption power of registration by concluding that the registration of transfer of ownership in the defendant's name was made by the person liable for registration who died, and denied the presumption power of registration. Thus, the court below did not err in the misapprehension of legal principles as to the presumption power of registration, which affected the conclusion of the judgment. The ground for appeal pointing this out is justified.

On the other hand, the defendant filed an appeal against the defendant as to the establishment registration of a neighboring mortgage of the court below, but there is no indication in the petition of appeal or the appellate brief of the grounds therefor.

2. Next, we examine the Plaintiffs’ grounds of appeal.

In light of the records, we affirm the judgment of the court below on the record that the plaintiffs pointed out as the grounds for appeal, and there are no errors in violation of the rule of experience and rules of evidence, or failure to exhaust all necessary deliberations, as alleged in the grounds for appeal.

The assertion is eventually without merit, and it is not acceptable for the court below to dispute the acknowledgement of the facts or cooking of evidence, which is the exclusive authority of the court below.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the above transfer of ownership is reversed, and that part of the case is remanded to the Panel Division of the Seoul District Court. All of the defendant's remaining appeals and plaintiffs' appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Jong-sik (Presiding Justice)