[1] In a case where a registration of initial ownership is completed by different persons registered as a titleholder for the same real estate, and where an heir of the owner who completed the registration of initial ownership from the prior registration of initial preservation files a claim for cancellation of registration on the ground that the subsequent registration of initial preservation or subsequent registration, such as ownership transfer, etc., is null and void, whether the lawsuit constitutes a lawsuit for recovery

[2] In a case where a lawsuit for ownership transfer registration or subsequent registration filed by an ancestor on the ground that the decedent himself/herself is the heir and the heir is the heir and the heir is the heir's heir's heir's heir's heir's heir's heir's heir's heir's heir's claim for recovery of inheritance becomes final and conclusive, whether the plaintiff's subsequent lawsuit seeking cancellation registration is against the res judicata

[3] In a case where the acquisition by prescription by a person who completed the registration of ownership transfer based on the registration of preservation of a subsequent offense is completed, whether seeking cancellation of registration based on the registration of preservation of a subsequent offense constitutes a claim for cancellation without substantive rights (negative)

[1] Where a registration of initial ownership has been completed because the former registration of initial ownership is different from the former registration titleholder, unless the latter registration of initial ownership is null and void, the latter registration of initial ownership is void in light of the legal principle of one real estate registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry registry

[2] The Plaintiff’s subsequent preservation registration does not assert that it constitutes a duplicate registration, but the ownership transfer registration is null and void because the true heir is not the true heir, and that subsequent registration of ownership transfer is filed by asserting that the ownership transfer registration is null and void, but the judgment against the Plaintiff became final and conclusive on the ground that the subsequent preservation registration constitutes a lawsuit for recovery of inheritance and the limitation period has expired, the Plaintiff’s subsequent lawsuit seeking cancellation registration is different from the previous lawsuit for which the lost judgment becomes final and conclusive, and thus, does not conflict with the res judicata effect of the previous lawsuit.

[3] The legal principle that, where a registration of ownership preservation overlaps with another registration titleholder as to the same real estate, unless the registration of ownership preservation is null and void, the former registration of ownership preservation shall be null and void, regardless of whether it conforms to the substantive relationship. Thus, where the latter registration of ownership preservation is null and void, and the latter registration of ownership transfer is null and void, and the latter registration of ownership preservation is null and void, it shall not be deemed null and void on the ground that the latter registration of ownership preservation conforms to the substantive relationship, even if the latter registration of ownership preservation or the latter registration of ownership transfer based on the latter registration of ownership preservation is jointly and openly occupied with the intent of ownership ownership for twenty (20) years and the prescription for possession is completed, it cannot be deemed that the latter registration of ownership preservation or the latter registration of ownership transfer based on the latter registration is a claim for cancellation of registration based on the latter registration of ownership preservation.

[1] Articles 186 and 99 of the Civil Act, Article 15 of the Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011) / [2] Articles 186 and 99 of the Civil Act, Article 15 of the Registration of Real Estate Act, Article 216 (1) of the Civil Procedure Act / [3] Articles 186 and 245 (1) of the Civil Act, Article 15 of the Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011)

[1] [2] Supreme Court Decision 2007Da63690 Decided February 14, 2008 (Gong2008Sang, 376) / [1] Supreme Court en banc Decision 87Meu2961, 87Da453 Decided November 27, 1990 (Gong1991, 178) / [3] Supreme Court Decision 93Da2017, 20184 decided September 20, 1996 (Gong199Ha, 3099)

Plaintiff (Attorney Lee Jong-il, Counsel for plaintiff-appellant)

Defendant 1 and six others (Attorney Go Jong-soo et al., Counsel for the defendant-appellant)

Gwangju High Court ( Jeju) Decision 2010Na288 Decided November 24, 2010

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

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the right to recover inheritance and the res judicata of the final and conclusive judgment

A. (1) The lower court acknowledged the following facts by comprehensively taking account of the adopted evidence.

① On December 31, 1917, registration of ownership preservation (hereinafter referred to as “registration of ownership preservation”) was completed in the name of Nonparty 1 (hereinafter referred to as “registration of ownership preservation”) in the name of the former, Seo-gu, Seo-gu, Gwangju, Seo-gu, Gwangju (hereinafter referred to as “instant land before the instant subdivision”) and the registration of ownership transfer was completed in the name of Nonparty 2, 3, and 4 on September 29, 1926 through Nonparty 5 on September 29, 1926.

② On July 18, 1932, 485-1,069 of the land before the instant partition was divided, and a separate registration of preservation of ownership (hereinafter “registration of preservation of ownership”) was made in the name of Nonparty 5 on April 1, 1960.

③ Although Nonparty 6, who was Nonparty 7, caused Nonparty 8 between Nonparty 6 and Nonparty 7, died on September 16, 1941 without filing a report of marriage and the report of birth against Nonparty 8. On June 12, 1943, Nonparty 5 filed a report of birth with Nonparty 8 to Nonparty 6 and registered it on the family registry.

④ As Nonparty 5 died on August 7, 1954, Nonparty 8, the grandchildren of Nonparty 5 on the family register, was registered on the family register as the family register, on the ground of the death of the former head of family, and Nonparty 9, who was Nonparty 5, applied for the correction of the family register to the Gwangju District Court 76ma2630. Nonparty 5, who was the second male, applied for the correction of the family register to Nonparty 5, the above court decided to permit the cancellation of Nonparty 8’s family register on the ground that the birth report of Nonparty 5, who was not the parent, was null and void, and the appeal by Nonparty 8 and reappeal were dismissed, the entry of Nonparty 8’s family register was deleted on September 17, 1976 and Nonparty 9 was registered as the inheritor of Nonparty 5 as the head of household.

⑤ After the entry in the family register was cancelled, Nonparty 8 filed a lawsuit claiming affiliation against the prosecutor with Gwangju District Court 93D5432, and on June 9, 1994, the judgment became final and conclusive on the judgment that Nonparty 8 was the deceased Nonparty 6’s natural father, Nonparty 8 filed a lawsuit for recovery of succession to the family register with Gwangju District Court 94D1382, but the above court dismissed the lawsuit on the ground that the limitation period for the right to claim recovery of inheritance expired, and all Nonparty 8’s appeals and appeals were dismissed and finalized.

④ The land indicated in the separate list of the lower court (hereinafter “each of the instant land”) was divided into the above 485-1 land through the process of subdivision, replotting, and merger as indicated in the lower judgment. On October 27, 1999, the registration of ownership transfer was completed in the name of Nonparty 8 for the above 485-1 land as of August 17, 1954. Thereafter, the registration of ownership transfer was completed on May 9, 1974 with respect to the land divided into the above 485-1 land, including each of the instant land, and the ownership transfer registration was completed on May 10, 1974 with respect to the non-party 10, 111, the ownership transfer registration was completed on April 27, 1994 with respect to the non-party 12’s shares, and the ownership transfer registration was completed on October 27, 1999 on each of the instant land under the name of Nonparty 1, 213, and 141-5.

7) On December 24, 2005, Nonparty 9, who was Nonparty 5’s South-North Korea, died on December 24, 2005, and the wife and his children jointly inherited the property of Nonparty 9.

(2) Based on the aforementioned findings of fact, the lower court determined that: (a) Nonparty 8’s entry in the family register of the head of the family was void as it was made without the parent’s recognition; (b) Nonparty 8’s winning in the action for recovery of succession against Nonparty 9 after winning the action for recognition; and (c) the judgment dismissing the action on the ground that the right to claim recovery of succession became extinct upon the lapse of the exclusion period; (d) Nonparty 8 cannot be deemed a legitimate head of the household; and (e) Nonparty 9, on behalf of Nonparty 6, who died before the commencement of the inheritance, is deemed to have succeeded to Nonparty 5; and (e) Nonparty 9, who is the next South and North Korea, on behalf of Nonparty 6, who died before the commencement of the inheritance, was the ownership registration under the name of Nonparty 9, the heir of the Plaintiff and his children; and (b) unless there is any assertion or proof as to the invalidity of the prior registration in the name of Nonparty 1 as to the land before the division, the ownership registration of the Defendant 1, was null and void.

(3) Furthermore, the lower court rejected the Defendants’ assertion on the following grounds: (a) the instant lawsuit is not permissible as it goes against the res judicata of the final and conclusive judgment; and (b) Nonparty 9’s claim for recovery of inheritance has ceased to exist due to the lapse of the exclusion period; and (c) the Plaintiff, the heir of Nonparty 9, has no right to seek cancellation

In other words, the judgment against Nonparty 10 and 11 was finalized on the ground that the limitation period for the claim for cancellation of the ownership transfer registration was expired after Nonparty 9 filed a lawsuit against Nonparty 10 and 11 in Gwangju District Court 78Gahap536, and the above lawsuit was finalized on the ground that the limitation period for the claim for recovery of inheritance. On the premise that the subsequent registration for preservation was valid, Nonparty 8, who completed the registration of ownership transfer due to inheritance, sought cancellation of the ownership transfer registration against Nonparty 10 and 11, who was subject to the registration of ownership transfer from Nonparty 8 on the ground that he is a title heir, and thus, the lawsuit in this case constitutes a lawsuit for recovery of inheritance, but the lawsuit in this case is invalidated on the ground that the subsequent registration for preservation is invalid regardless of whether Nonparty 8 is a title heir or not. Thus, even if the limitation period for the right of ownership transfer registration of an heir based on the registration of ownership transfer based on the second registration for the registration for recovery of inheritance was different in the subject matter of lawsuit, and the lawsuit in this case can be claimed for cancellation of the subsequent registration of ownership.

B. (1) Where a registration of initial ownership has been completed because of a different registration titleholder with respect to the same real estate, unless the registration of initial ownership is null and void, the registration of initial ownership shall be null and void in light of the legal principles of one real estate registration form. (See, e.g., Supreme Court en banc Decision 87Meu2961, 87Da453, Nov. 27, 1990; Supreme Court Decision 2007Da63690, Feb. 14, 2008). The plaintiff is the heir of the owner who completed the registration of initial ownership from the registration of initial ownership, and the subsequent registration of ownership transfer, etc. is null and void on the ground that both the registration of initial preservation or subsequent registration of ownership transfer, etc. are made in sequence based on the registration of initial preservation is null and void, and therefore, the period of exclusion of the registration claim in this case shall not be deemed null and void on the ground that the subsequent registration is a subsequent invalidation.

(2) As above, insofar as the Plaintiff’s cause of the instant claim does not fall under the lawsuit for recovery of inheritance, the Plaintiff did not assert that the registration for preservation of ownership constitutes duplicate registration, and the ownership transfer registration that was made by inheritance from the registration for preservation that was made by his/her true heir is null and void, and the ownership transfer registration that was made by inheritance is not the true heir, and the ownership transfer registration that was made by his/her true heir is null and void, and the judgment against the Plaintiff was final and conclusive on the ground that the lawsuit constituted a lawsuit for recovery of inheritance and the limitation period expired, the instant lawsuit does not conflict with the res judicata effect of the previous lawsuit, since the Plaintiff’s judgment against the inheritee

(3) In light of the above legal principles, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the right to recover inheritance and the res judicata of a final

2. As to the misapprehension of legal principles as to the validity of duplicate registration and the right to claim cancellation of registration

Where a registration of ownership preservation overlapping with another registration titleholder for the same real estate has been completed, the legal principle that the latter registration shall be null and void regardless of whether it conforms to the substantive relationship, unless the preceding registration for preservation is null and void, applies to cases where the title holder of the ownership transfer registration or ownership transfer registration for the latter has acquired the ownership of the relevant real estate at the original time.

Therefore, in a case where the registration of preservation in the preceding preservation is null and void because the registration of preservation in the preceding preservation is not null and void, even if the person who completed the registration of preservation in the following preservation registration occupies the real estate in peace and openly with the intention of ownership ownership for twenty (20) years and the acquisition by prescription has been completed, it cannot be deemed as valid on the ground that the registration of preservation in the preceding preservation is consistent with the substantive relationship. It cannot be deemed that seeking cancellation of the registration based on the registration of preservation in the following preservation by asserting ownership based on the preceding preservation registration constitutes a claim for cancellation without any substantive right (see, e.g., Supreme Court Decisions 93Da20177, 20184, Sept. 20, 196; 2007Da63690, Feb. 14, 2008).

The court below's rejection of the defendants' assertion that the registration of the defendants is valid in accordance with the substantive legal relationship is just and is not erroneous in the misapprehension of legal principles as to the validity of duplicate registration and the right to request cancellation.

3. Conclusion

Therefore, all 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 on the bench.

Justices Min Il-young (Presiding Justice)