Seogsan and two others (Attorney Kim Jong-soo, Counsel for the defendant-appellant)

Kim Jong-si et al. (Law Firm Nam-do General Law Office, Attorney Shin Jae-il, Counsel for the plaintiff-appellant)

May 26, 2006

Gwangju District Court Decision 2004Kadan524 Decided September 30, 2005

1. Of the judgment of the court of first instance, the part against the Defendants in Paragraph 1 of this Article shall be modified as follows.

A. In the case of Defendant Kim Jong-dong, each of the shares of 1/3 in relation to 69,129 square meters of forests and fields 118 m3,000 a.m. 118m2 at a

(1) 원고 서춘근에게 별지 도면 표시 ⓖ, ⓗ, ⓘ, ⓙ, ⓚ, ⓖ의 각 점을 순차로 연결한 선내 (라)부분 1,983㎡에 관하여 1986. 4. 26.자 취득시효완성을 원인으로 한,

(2) 원고 박석규에게 같은 도면 표시 ⓒ, ⓓ, ⓔ, ⓕ, ⓖ, ⓚ, ⓛ, ⓒ의 각 점을 순차로 연결한 선내 (다)부분 1,322㎡에 관하여 1988. 2. 29.자 취득시효완성을 원인으로 한,

(3) 원고 이상진에게 별지 도면 표시 ⓐ, ⓑ, ⓒ, ⓛ, ⓜ, ⓝ, ⓞ, ⓟ, ⓐ의 각 점을 순차로 연결한 선내 (나)부분 826㎡에 관하여 1993. 3. 19.자 취득시효완성을 원인으로 한

Each procedure for the registration of ownership transfer shall be implemented.

B. Defendant Kim Jong-tae shall implement the procedure for the registration of ownership transfer on the ground of the completion of the acquisition by prescription on March 19, 1993 with respect to the portion of 1/3 shares in the forest as above among the shares of 826 square meters in the forest.

C. The claims against the defendant Kim Jong-sung and Park Jong-chul by the plaintiff Kim Jong-sung are dismissed, respectively.

2. Among the costs of lawsuit, the total costs incurred between the plaintiffs and the defendant Kim Jong-sik shall be borne by the above defendant, the above defendant, the defendant Seo-Seng, and the total costs incurred between the above plaintiffs, the above plaintiffs, the above plaintiffs, and the defendant Kim Jong-sung, respectively.

1. Purport of claim

The defendants are not less than 69,129 square meters of forests and fields 118,000 m20,000 m20

A. As to the part of (D) 1,983 square meters in the text against the Plaintiff Seog-gu, the part as to the order:

B. As to part 1,322 square meters in the text to the Plaintiff Park Jong-dae:

C. As to the part of (B) 826 square meters on the order with respect to the Plaintiff’s abnormal manpower

With respect to each one-third share, each procedure for the transfer of ownership due to the completion of the acquisition by prescription on June 23, 2000 shall be implemented.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked. The Plaintiff’s claim against the Defendants is dismissed, respectively.

1. Basic facts

A. On December 10, 1946, three persons, such as leaps, gambling water, and gambling boat, specifying the location and size of 69,129 square meters of forests and fields 118 m2, Dong-dong 118,000 square meters (hereinafter “the instant forest”) at the time of leisure and water owned by the said three persons, and separately used and profit from each owned part without completing the registration of ownership transfer.

나. 박윤수는, 이 사건 임야 중 자신이 매수한 부분 가운데, 1966. 4. 26.경 원고 서춘근에게 별지 도면 표시 ⓖ, ⓗ, ⓘ, ⓙ, ⓚ, ⓖ의 각 점을 순차로 연결한 선내 (라)부분 1,983㎡{매매 당시에는 이 사건 임야 9정6반7보내 강수등 서씨 묘 윗부분 600평으로 표시함, 이하 ‘(라)부분’이라고 한다}를 특정하여 대금 31,000원에 매도하였고, 1968. 2. 29.경 박병인에게 별지 도면 표시 ⓒ, ⓓ, ⓔ, ⓕ, ⓖ, ⓚ, ⓛ, ⓒ의 각 점을 순차로 연결한 선내 (다)부분 1,322㎡{매매 당시에는 적량리 산 118번지 개간지 총 3,000평 중 400평으로 표시함, 이하 ‘(다)부분’이라고 한다}를 특정하여 대금 40,000원에 매도하였으며, 1973. 3. 19.경 원고 이상진에게 별지 도면 표시 ⓐ, ⓑ, ⓒ, ⓛ, ⓜ, ⓝ, ⓞ, ⓟ, ⓐ의 각 점을 순차로 연결한 선내 (나)부분 826㎡{매매 당시에는 적량리 산 118번지 9정6반7보 중 하변로 측 개간지 박윤수 관리의 250평으로 표시함, 이하 ‘(나)부분’이라고 한다}를 특정하여 대금 35,000원에 매도하였고, 원고들은 위 각 매매계약 무렵 박윤수로부터 위 각 매수 부분을 인도받아 점유하기 시작하였다.

C. The part of the purchase of the above portion is occupied by the plaintiff Seogk-gu, and the part (c) occupied by the deceased on June 21, 1990, and the plaintiff Park Jong-jin, who was his own child, is inherited by the deceased on his own, and the above part is occupied until now.

D. Meanwhile, the above three persons, including leaps, gambling and gambling, did not complete the registration of ownership transfer with respect to the forest of this case. On the ground of sale on June 23, 1980 by the receipt No. 20313, which was received on June 23, 1980 and December 10, 1946, the court of first instance completed the registration of ownership transfer with 1/3 share ownership transfer in the name of the co-defendants of the court of first instance (leaps) in the name of gambling, gambling, and gambling.

E. After that, on January 25, 1989, Park Jong-kak sold to Defendant Kim Jong-kung a part of the forest of this case, which was divided by specifying his location and size, and on the 1/3 portion of the forest of this case 1/3 portion of the forest of this case, the Gancheon District Court of Gwangju District on February 24, 1989, receipt No. 2559 of the receipt on February 24, 1989. Meanwhile, as Park Jong-kak died on December 20, 197, the share transfer registration under Defendant Kim Jong-kung was completed on May 13, 2004 by the same day on the ground of inheritance by division.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1, 9, Gap evidence Nos. 2, 5, 6, 7-1, 2, Gap evidence Nos. 3-1 through 7, Gap evidence Nos. 4-1 through 4, Gap evidence Nos. 10-3, Eul evidence Nos. 1 and 2, Gap evidence Nos. 10-1 through 3, Eul evidence Nos. 1 and 2, the testimony of the chief of the court of first instance, the result of the survey and appraisal by the first instance appraiser, the result of the on-site inspection by the court of first instance

2. Determination

A. The completion of the plaintiffs' prescription of possession

According to the above facts of recognition, it is presumed that the portion of the (D) portion from April 26, 1966 to April 26, 1986, from February 29, 1968 to February 29, 198, from February 29, 1968, from 1968 to 29, from 198, from 1963 to 193, from 1973 to 20 years, from 193 to 193, from 1993 to 20 years, the part of the (b) portion of the plaintiffs' above possession was occupied in peace and openly and openly with the intention of possession for 20 years. As such, with respect to each of the above possession of the plaintiffs, the prescription period for acquisition was completed

B. Determination as to the plaintiffs' claim against defendant Kim Jong-soo

According to the above facts, Park Jong-soo was registered as the owner of the 1/3 share of the forest of this case at the time the acquisition by prescription of each possession of the plaintiffs was completed, and the defendant Kim Jong-dong succeeded to the above share of the forest of this case by an agreement division. As such, the defendant Kim Jong-dong was obligated to implement each ownership transfer registration procedure for the part (C) on the part (B) to the plaintiff Park Jong-hee, the heir of Park Jong-man, on February 29, 1988, on the ground of the completion of the acquisition by prescription on April 19, 1993, only for the part (c) due to the completion of the acquisition by prescription as of February 29, 198, on the part (b) by the plaintiff Kim Jong-jin on March 19, 193.

C. Determination as to the claim against the defendant Kim Man-hwan

If the nominal owner of the real estate changes the starting point for calculating the starting point for the acquisition by prescription, the starting point for calculating the starting point for the acquisition by prescription shall, in principle, be the starting point for the acquisition by prescription. The starting point for the acquisition by prescription shall not be the starting point for the party, and if a third party purchaser completes the registration of ownership transfer after the completion of the acquisition by prescription on the basis of the starting point, it shall not be effective to oppose the acquisition by prescription against the third party (see, e.g., Supreme Court Decision 98Da4068

According to the above facts, since there is a change in the nominal owner with respect to the ownership of the instant forest, the Plaintiffs cannot choose at will the starting point of the acquisition by prescription, and the period of prescription shall be calculated from each starting point of possession. Accordingly, the Plaintiffs cannot claim the acquisition by prescription for Defendant Kim Fung who completed the registration of ownership transfer with respect to the instant forest after the completion of each acquisition by prescription. On the other hand, the right to claim the registration of ownership transfer with respect to the instant forest by mutual title trust is not a common co-ownership relationship with the registered titleholder, but a mutual title trust relationship with the other party to the right to claim the registration of ownership transfer due to the completion of the acquisition by prescription, and the acquisition by prescription has been completed after the completion of the registration of ownership transfer with respect to his share of the instant forest. Accordingly, Defendant Kim Fung-jin has the obligation to register ownership transfer with respect to the portion of the ownership of the instant forest on March 19, 193.

3. Conclusion

Therefore, the plaintiffs' claims against the defendant Kim Jong-jo and their claims against the defendant Kim Jong-jin are justified, and each of them is accepted, and the claims against the plaintiff Cho Jong-jin's defendant Kim Jong-sung are dismissed, as there is no reasonable ground. Accordingly, the judgment of the court of first instance which partially different conclusions are unfair within its scope, and it is so decided as per Disposition by the court of first instance to revise the judgment as above.

Judges Kim Jin-jin (Presiding Justice) Kim Jong-py Kim