[1] The degree of proof to reverse the presumption of registration under the former Act on Special Measures for the Registration, etc. of Ownership Transfer

[2] Whether it is presumed that a clan owned or owned by a clan solely on the basis of the fact that it was a clan (negative)

[1] The registration under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (Act No. 3094 of Dec. 31, 197, invalidation) is presumed to have been completed in accordance with the lawful procedure under the same Act, and is presumed to have been completed in accordance with the substantive relationship. Therefore, there is a burden of asserting and supporting the affirmative reversal of presumption to the person who has filed a lawsuit for the cancellation of registration, but if there is proof to prove that the substantial contents of a guarantee or a written confirmation, which forms the basis of registration, are not true, the presumption power of registration shall be deemed to have been reversed, and the degree of proof of falsity, such as such a letter

[2] Although the circumstances leading up to which land becomes the soil of a specific tomb include cases where a clan acquires the ownership of the land and establishes a memorial soil for the acquisition of the ownership of the land, there may be cases where an individual in the descendants set up the land as the soil of a specific ancestor cemetery, so the land owned by the clan cannot be deemed as the land owned by the clan solely on the ground that it is the land of the clan, and it cannot be readily concluded that it is the land of the clan as the land of the clan.

[1] Article 6 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094 of Dec. 31, 197), Article 186 of the Civil Act / [2] Article 187 of the Civil Procedure Act

[1] Supreme Court Decision 93Da57490 delivered on March 11, 1994 (Gong1994Sang, 1185), Supreme Court Decision 95Da1184 delivered on April 23, 1996 (Gong1996Sang, 156), Supreme Court Decision 96Da31024 delivered on November 15, 1996 (Gong1997Sang, 697Sang, 1997Sang, 197Sang, 1997; 97Da4898 delivered on April 25, 197 (Gong1997Sang, 1594); 97Da1966 delivered on September 1, 196 (amended by Supreme Court Decision 70Da141984 delivered on September 24, 196)

Plaintiff (Attorney Yoon Young-chul et al., Counsel for plaintiff-appellant)

Defendant 1 and five others (Attorney Kim Tae-tae, Counsel for the defendant-appellant)

Seoul District Court Decision 95Na11633 delivered on November 23, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. On the first and second grounds for appeal

The registration under the former Act on Special Measures for the Registration, etc. of Transfer of Real Estate (Act No. 3094, Act No. 3094, Act No. 3094) is presumed to be a registration completed in accordance with the lawful procedures prescribed in the same Act and consistent with the substantive relationship. Therefore, even though there is a burden of assertion and proof to actively reverse the presumption to the person who has filed a lawsuit for the cancellation of the registration, if there is proof to suspect that the substantial contents of the guarantee or written confirmation, which forms the basis of the registration, are not true, the presumption power of the registration, shall be deemed to have been reversed, and the degree of proof of the falsity of such guarantee, etc. shall not be required to be the degree of conviction of the judge (see, e.g., Supreme Court Decisions 97Da4838, Apr. 25, 1997; 93Da57490, Mar.

Examining the reasoning of the judgment of the court of first instance cited by the court below in comparison with records, the court of first instance recognized facts as stated in its reasoning based on evidence, and it cannot be said that the court below erred in the misapprehension of legal principles as to the presumption of registration and change of rights under the aforementioned special measures against each of the real estate listed in the attached list of the judgment below (hereinafter referred to as the "real estate of this case") and the presumption power was reversed, since the registration of preservation of ownership in the name of Defendant ○○○○○○○○○○○○○○○ branch (hereinafter referred to as the "Defendant clan") was proved as sufficient to suspect that the substantive contents of the guarantee, which was the basis of the above registration, were not true. Therefore, the above registration of preservation of ownership is null and void by determination of substantive rights, and therefore, each registration of ownership transfer in the name of the deceased Nonparty 1 is null and void, as alleged in the ground of appeal.

2. On the third and fifth grounds for appeal

Although the circumstances leading up to which land has become a tomb for a specific tomb, there are cases where a clan related to the specific tomb is established by acquiring the ownership of the land, it can be said that there is a case where a person among descendants sets up the land owned by him as a tombstone for a specific ancestor. Thus, it cannot be said that it is the land owned by a clan solely on the fact that it is the land owned by the clan (see, e.g., Supreme Court Decisions 95Da21471, Nov. 14, 1995; 85Da847, Nov. 26, 1985; 83Do1726, Mar. 13, 1984; 83Do1726, Sept. 22, 1970).

The Supreme Court Decision 4292No966 Decided September 1, 1960, which has taken a different view, is to revise it.

According to the reasoning of the judgment of the court of first instance cited by the judgment of the court below, the court below acknowledged that the real estate of this case was originally owned by the plaintiff (the plaintiff is not the funeral owner of the grave that provides for the real estate of this case) and on the other hand, the real estate of this case was entrusted to the deceased non-party 2 and was under the circumstances of the above non-party 2, but since the termination of the title trust, the above registration of preservation of the ownership of the defendant clan's name was valid for the registration that conforms to the substantive legal relationship. The above registration of the ownership of the real estate of this case was recognized, but it cannot be concluded that the real estate of this case was owned by the defendant clan just because it was owned by the witness of the court of first instance, and it cannot be concluded that the real estate of this case was owned by the defendant clan without any evidence to find that the real estate of this case was a title trust to the non-party 2 as the owner of the real estate of this case. In light of the records and the legal principles shown above, the court below rejected the above determination of facts and the grounds for appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendants who have lost them. It is so decided as per Disposition by all participating Justices on the bench.

1. The grounds of appeal are with merit. The grounds of appeal are with merit. It is so decided as per Disposition by the assent of all participating Justices on the bench and all participating Justices on the bench.