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)

October 27, 2010

Jeju District Court Decision 2009Da1487 Decided January 21, 2010

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

A. Claim as to Defendant 1, 2, 3, 5, 6, and 7

(1) The primary purport of the claim

Of each real estate listed in the separate sheet, Defendant 1, 2, and 3 share in 1/4; Defendant 5 share in 3/28; Defendant 6 and 7 share in 2/28 share in 3/15; Defendant 3/15; Nonparty 16, 17, 18, 19, 20, and 21 share in 2/15, respectively.

(2) Claim of the preliminary claim

(A) Defendant 1 and 2 implement the procedure for registration of cancellation of ownership transfer registration completed under No. 60370 of receipt of October 27, 1999 with respect to shares of 1/4 of each of the real estate listed in the separate sheet;

(B) As to each of the real estates listed in the separate sheet, Defendant 3 implements the procedure for the cancellation of each of the registrations of transfer of ownership completed by the Gwangju District Court No. 3565 on May 12, 2003, and the procedure for the cancellation of each of the registrations of transfer of ownership completed by the Gwangju District Court No. 195478 on November 5, 2007;

(C) Of the real estate listed in the separate sheet, Defendant 5 will implement the procedure for registration of cancellation of ownership transfer registration completed by the Gwangju District Court No. 74413 on November 9, 2004 with respect to the shares of 3/28; Defendant 6 and 7 will implement the procedure for registration of cancellation of ownership transfer registration completed on November 9, 2004.

B. Purport of the claim against Defendant Gwangju Saemaul Bank

The defendant Gwangju Saemaul Community Depository shall implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Gwangju District Court No. 221485, Dec. 18, 2007; ② completed by the Gwangju District Court No. 115348, Jul. 8, 2008; ③ completed by the Gwangju District Court No. 117536, Jul. 11, 2008; ④ the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Gwangju District Court No. 99286, May 25, 2009.

2. Purport of appeal

The part against the Defendants in the judgment of the first instance shall be revoked, and the Plaintiff’s claim corresponding to the revoked part (in the case of the remaining Defendants except the Defendant Gwangju Saemaul Bank, the conjunctive claim) shall be dismissed.

1. Scope of the trial of this court against the defendant 1, etc.;

In the first instance court, the Plaintiff filed a claim for the ownership transfer registration on each real estate listed in the separate sheet with respect to the remainder of the Defendants except Defendant Gwangju Saemaul Bank (hereinafter “Defendant 1, etc.”), and filed a preliminary claim for the cancellation of the registration of the ownership transfer registration or the right to claim ownership transfer registration in the name of Defendant 1, etc., respectively. The first instance court dismissed the primary claim and accepted the preliminary claim.

As the defendant 1 et al. appealed, this Court decides only the preliminary claim against the defendant 1 et al.

2. Basic facts

(a) Registration for preceding preservation;

(1) The Geong-gun-si 485 Guide 1,085 Guide 1,085 (hereinafter referred to as “land before subdivision.” Meanwhile, in the administrative district, the term “Yeong-gun Doeng-dong” changed to the term “Yeong-dong, Seo-gu, Seo-gu, Seo-gu.” Under the following, the land under the circumstances of Nonparty 1 was registered as the registration of preservation of ownership on December 31, 1917 (hereinafter referred to as “registration of preservation of ownership”). The registration of preservation of ownership was completed on December 31, 1917 by Nonparty 1 (hereinafter referred to as “registration of preservation of ownership”).

(2) Based on the previous preservation registration as to the land before subdivision, the ownership transfer registration was completed in order with the non-party 5 dated September 29, 1926 on the basis of the previous preservation registration as to the land before subdivision: ① the non-party 2 on December 31, 1917; ② the non-party 3 on June 5, 1922; ③ the non-party 4 on September 8, 1925; and the ownership transfer registration was completed in the non-party 5 on September 29, 1926 (the evidence 3-1, 2, 3).

(3) The above non-party 5 died on August 7, 1954, and on the other hand, the non-party 9, who was the children of the non-party 5, died on December 24, 2005, and was jointly inherited by the plaintiff and the non-party 16, 17, 18, 19, 20, and 21, who was the wife of his property.

(b) Registration for the preservation of overlap;

(1) Meanwhile, on July 18, 1932, the land before subdivision was divided into the land cadastre, 185-1, 485-1,069 and 2, 385-2, 16.

(2) However, as seen earlier, the registration for prior preservation of Nonparty 1 was completed with respect to the land prior to subdivision and the registration was completed on the basis of the registration, but the ownership transfer of Nonparty 5 was completed on the basis of the registration, on April 1, 1960 as to the farmland prior to subdivision 485-1,069, which was divided from the land prior to subdivision, the separate registration for initial preservation (hereinafter “after-sale preservation registration”) was completed on April 1, 1960.

(c) Division of the land based on the registration for the preservation of the future and the registration in the name of the Defendants;

(1) On October 21, 1972, on the basis of the above-mentioned preservation registration, the registration of ownership transfer was made on October 21, 1972 on the basis of the above-mentioned preservation registration on the farmland 485-1,069, and on August 17, 1954 on July 21, 1973, the above farming-dong 485-1,069 on July 21, 1973 (1) 103, 2) farming-dong 485-1, 485-3, 263, 3) farming-dong 485-4, 703.

(2) On August 4, 1973, 1973, 103, 485-1, 103, 103, 385-5, 481-5, 100, 100, 2, 485-4, 703, 483, 483-6, 445 and 261, 33, 483-7, 36, 483-7, 381, 5, 5, and 6).

(3) After that, on May 9, 1974, Nonparty 10 and Nonparty 11 had completed the registration of ownership transfer for the following reasons: 481-5, 483-6, 345, 483-7, 361, 483-7, 361, 481, 481, 300, 481, 481, 481, 300, 4810, 1994, and the registration of ownership transfer for the following reasons was completed on April 27, 1994 (Ga evidence 5, 6, 7).

(4) On October 5, 1994, following a division and merger as indicated in the corresponding column of the said column of the farmland-dong 481-5 100 square meters, the farmland-dong 483-6 445 square meters, and the farmland-dong 483-7 261 square meters, the farmland-dong 483-5 square meters and the farmland-dong 481-5 square meters and the farmland-dong 489 square meters and the farmland-dong 481-28 square meters and the farmland-dong 487 m29 m2 and the farmland-dong 481-29 m29 m2.

(5) On June 24, 1997, ① the farmland of 481-28 and 887 square meters in the above farming-dong was divided into the farmland of 481-28 and 481-32 square meters in the farmland of 481-32 in the annexed Table 2 attached hereto, and ② the farmland of 481-29 and 513 square meters in the above farming-dong of 1997 was divided into the farmland of 481-29 and the farmland of 481-33 square meters in the annexed Table 3 attached hereto.

(6) As to each of the lands listed in the above separate sheet (hereinafter “each of the lands of this case”) is awarded a successful bid by Nonparty 13, 14, and Defendant 1, and Defendant 2 in the voluntary auction procedure conducted at the Jeju District Court 98ta-do 47366, with respect to each of the lands of this case on October 27, 1999, the ownership transfer registration for each of the lands of this case was completed with respect to Nonparty 13, 14, and Defendant 1 and/or Defendant 2 with respect to each of the lands of this case on October 27, 199 as the receipt of the Gwangju District Court 60370 (Evidence 7-1, 2, 3).

(7) After all, on May 12, 2003, the provisional registration of the right to claim ownership transfer was completed on May 12, 2003 with respect to the non-party 13 shares (1/4), and on November 5, 2007, the principal registration of the right to transfer ownership was completed on November 3, 2007 as the receipt of the Gwangju District Court No. 195478.

(8) In addition, on November 9, 2004 with respect to the non-party 14 shares (1/4), the registration of ownership transfer was made under the receipt of the Gwangju District Court No. 74413 on November 9, 2004, and the non-party 15 died on September 17, 2009 and jointly succeeded to the property of the non-party 5 and his husband, and the defendant 6 and 7, who are his husband, jointly succeeded to the property of the non-party 15.

(9) Meanwhile, in the name of the defendant Gwangju Saemaul Savings Depository, as to the shares (1/4) of the non-party 15 in each of the above lands, the establishment registration of each of the above shares (1/4) was completed on December 18, 2007 by the Gwangju District Court received No. 221485, Jul. 8, 2008; as to the shares (1/4) of the defendant 3, the Gwangju District Court received No. 115348, Mar. 11, 2008; as to the shares (1/4) of the defendant 2, the Gwangju District Court received No. 117536, May 25, 2009; as to the shares (1/4) of the defendant 15, as to May 25, 2009.

(10) As seen earlier, the details of land division, land substitution, annexation and change of ownership based on the preservation registration are summarized as follows.

[Attachment]

본문내 포함된 표 분할 전 토지 1932. 7. 18. 1973. 7. 21. 1973. 8. 4. 1994. 10. 5. 1997. 6. 24. 최종 비고 485 답 1,085평 485-1 답 1,069평 485-1 답 103평 481-5 답 100평 481-5 답 2,549㎡ 481-5 답 1,149㎡ ？ ？ 481-5 답 1,149㎡ 별지 1번 485-4 답 703평 483-6 답 445평 481-28 답 756㎡ 481-28답 887㎡ 481-28 답 843㎡ 481-28 답 843㎡ 별지 2번 481-30 답 131㎡ 481-32 답 44㎡ ？ ？ 483-7 답 261평 481-29 답 471㎡ 481-29 답 513㎡ 481-29 답 280㎡ 481-29 답 280㎡ 별지 3번 481-31 답 42㎡ 481-33 답 233㎡ ？ ？ 485-3 답 263평 ？ ？ ？ ？ ？ ？ ？ 485-2 도로 16평 ？ ？ ？ ？ ？ ？ ？ ？ 후행등기(등기일자) 소외 5(60. 4. 1.) 소외 8(72. 10. 21.) 소외 10, 소외 11(74. 5. 9.) 소외 12(94. 4. 27.) 피고 1, 피고 2, 소외 13→소외 14→(99. 10. 27.) 피고 3 (07. 11. 5.) 망 소외 15(04. 11. 9.)

[Ground of recognition] The facts without dispute, Gap evidence 1-1, 2-2, Gap evidence 2-1 through 7, Gap evidence 3-1, 2-3, Gap evidence 4-1 through 9, Gap evidence 5-1 through 11, Gap evidence 7-1, 2, and 3, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

(1) Whether the Plaintiff inherited the land before subdivision

The fact that the registration of ownership transfer has been made in the non-party 5 on the basis of the preceding registration of preservation before subdivision is as seen earlier. As the non-party 5 died on August 7, 1954 prior to the enforcement date of the Civil Act ( January 1, 1960), it is a matter of who is the right to inherit the land before subdivision.

(A) If the head of South and North Korea died before the enforcement of the Civil Act, the head of South and North Korea shall inherit the property independently at the same time as the family inheritance. If the head of South and North Korea died before the commencement of the inheritance with unmarried succession, it is customary in the Republic of Korea to allow the inheritance of the family and the inheritance of the property (see, e.g., Supreme Court Decisions 90Meu2301, Oct. 30, 1990; 200Da8359, Jun. 9, 2000).

(B) According to Gap evidence Nos. 1, 2, and 12-1, 2, and 3, the following facts are as follows: ① The non-party 6-1 created the non-party 8 between this non-party 7 and this non-party 7, but died on September 16, 1941 without filing a report of birth against the wife and the non-party 8; the non-party 5 reported the birth to the non-party 6 on June 12, 1943; ② the non-party 5 died on August 7, 195, and the non-party 8, the non-party 5’s grandchildren on the family register, the non-party 5’s grandchildren on the family register, and the non-party 9-2, the non-party 8’s heir on the ground of the death of the former head of family; ③ the non-party 5’s non-party 9-2, the non-party 8’s heir on the family register, and the court dismissed the above non-party 86.

According to the above facts of recognition, the initial statement that Nonparty 8 is the heir of Nonparty 5 was made without recognition by Nonparty 6 or mother, who is the father of the family register. Thus, it cannot be deemed that Nonparty 8 was the legitimate heir of Nonparty 5. Therefore, it shall not be deemed that Nonparty 9, who was the father of the family register before the commencement of inheritance, succeeded to Nonparty 5’s head and property on behalf of Nonparty 6 on December 24, 2005, and the above non-party 9 died on December 24, 2005 and was jointly inherited by Nonparty 16, 17, 18, 19, 20, 21, and 21, who was the wife of the plaintiff’s property. Accordingly, the land including each of the land of this case, including each of the land of this case, shall be jointly owned by the plaintiff 3/15, and Nonparty 16, who is the child, at the rate of 2/15.

(2) Whether registration based on ownership transfer registration under the name of the Defendants is invalid

(A) In a case where a certain parcel of land is divided into several parcels, if there exist several registrations of preservation of ownership in which the former owner is different with respect to the land which was divided into the former parcel of land, such two registrations shall be deemed double registration in relation to the same parcel of land, the same part of which is substantially identical (see Supreme Court Decision 87Meu2568, Mar. 22, 198).

In addition, where a registration of initial ownership has been made in duplicate because the registered titleholder was different with respect to the same real estate, the registration of initial ownership is invalid under the current Registration of Real Estate Act, which adopts the registration form principle for one real estate (see, e.g., Supreme Court en banc Decision 87Meu2961, 87Da453, Nov. 27, 1990; Supreme Court Decision 2007Da63690, Feb. 14, 2008).

(B) ① On December 31, 1917, the prior preservation registration of Nonparty 1 was completed on the land before subdivision, and on the basis of this, the ownership transfer registration was completed on September 29, 1926 through Nonparty 2, etc. on September 29, 1926; ② On April 1, 1960, the subsequent preservation registration was made in the name of Nonparty 5 on April 1, 1960 on the farmland before subdivision 485-1,069, which was divided from the land before subdivision, and the ownership transfer registration was made in the name of Defendant 1, 2, 3, and 15 (the decedent of Defendant 5, 6, and 7) on each portion of the instant land after subdivision, and the ownership transfer registration was completed again on each of the said shares in the name of Defendant Gwangju Saemaul Community, as seen earlier.

Therefore, in this case where there is no assertion or proof as to the invalidity of the above preceding preservation registration, the registration of ownership transfer made based on the following preservation registration: ① ownership transfer with Defendant 1 and 2; ② ownership transfer registration and ownership transfer registration with Defendant 3; ③ ownership transfer registration with Nonparty 15, the decedent of Defendant 5, 6, and 7; ④ ownership transfer registration with Nonparty 15, the decedent of Defendant 5, 6, and ④ ownership transfer registration under the name of Defendant Gwangju Saemaul Community Depository (hereinafter collectively referred to as “ownership registration, etc. under the name of the defendants”), all of which are invalid.

B. The defendants' assertion and judgment

(1) Whether a final and conclusive judgment conflicts with res judicata effect

The Defendants first filed a lawsuit against Nonparty 9, who is the Plaintiff’s husband, against Nonparty 10 and 11 (hereinafter “ Nonparty 10 for convenience”), claiming cancellation of the registration of transfer of each of the instant lands (hereinafter “previous lawsuit”), with the Gwangju District Court 78Gahap536, which became final and conclusive after receiving a judgment against the Defendants. The Defendants succeeded to each of the instant lands through Nonparty 10, 12, etc. in sequential order after the closure of pleadings in the previous lawsuit. Accordingly, the instant lawsuit is not permissible since it contradicts the res judicata effect of the said final and conclusive judgment.

According to the statement 1, 2, and 3 of evidence 5-1, 5-3, the non-party 9 filed a previous lawsuit against the non-party 10 on March 31, 1981, stating that "The non-party 9 dismissed the claim against the non-party 9 on the ground that the claim for recovery of inheritance had already been extinguished on March 31, 1981, the non-party 9's claim against the non-party 10 on the ground that the non-party 9 had been rejected on the ground of inheritance based on the subsequent preservation registration on the non-party 8's ownership transfer and the non-party 10's ownership transfer registration on the ground that the non-party 9's claim for recovery of inheritance had already been extinguished on the ground that the non-party 9's claim for recovery of inheritance had already been rejected on the ground that the non-party 9's appeal was dismissed on the ground that the non-party 9's appeal became final and conclusive on the ground that the judgment became final.

However, under the premise that the above previous lawsuit is valid, Nonparty 8, who completed the registration of ownership transfer based on inheritance based on such preservation registration, has the appearance that helps Nonparty 8 trusted that he is an inheritor, and Nonparty 10 is a lawsuit seeking the cancellation of the registration of ownership transfer in the name of Nonparty 10 on the ground that he is the person who acquired each of the land of this case from such a person who acquired the ownership from such a person who acquired the land of this case. On the other hand, the lawsuit of this case is a lawsuit seeking the cancellation of the registration of ownership transfer in the name of the Defendants on the ground that the registration of ownership transfer based on the preservation registration is null and void regardless of whether Nonparty 8 was the heir or not, and thus, the subject matter of the lawsuit of this case is different from the lawsuit of this case. Accordingly, the above assertion by the Defendants on the different premise cannot be accepted.

(2) Whether the Plaintiff has no substantive right to seek cancellation of ownership transfer registration, etc. under the name of the Defendants

Next, even if the registration should be cancelled on the basis of the ownership preservation registration that was made after the ownership transfer registration in the name of the Defendants overlap, the Defendants asserted that, as Nonparty 9’s claim for inheritance recovery of each of the instant lands had already expired due to the lapse of the exclusion period, Nonparty 9 lost ownership of each of the instant lands, and the Plaintiff did not acquire ownership as a result, the Defendants asserted that the Plaintiff has no substantive right to seek cancellation of ownership transfer registration in the name of the Defendants.

On the other hand, it is reasonable to view that, if a claim for recovery of inheritance becomes extinct due to the expiration of the exclusion period, an inheritor would lose the overall status as an inheritor, i.e., individual rights and obligations inherited by inheritance, and that an inheritor acquires the status as an inheritor retroactively from the time of commencement of inheritance, since the status of an inheritor becomes final and conclusive as a reflective effect, and that an inheritor acquires the status as an inheritor retroactively from the time of commencement of inheritance (see, e.g., Supreme Court Decision 93Da5714, Mar. 25, 1994). However, there is a case where an inherited property should be deemed to be owned retroactively from the time of commencement of inheritance (see, e.g., Supreme Court Decision 93Da57144, Mar. 2

In other words, where the registration of transfer in the name of the title heir is made based on the valid registration, if the right to claim for recovery of inheritance terminates due to the lapse of the exclusion period, the true heir shall lose the ownership of the above inherited property because there is no way to cancel the registration of transfer in the name of the title heir as to the infringed inherited property, and the above inherited property shall be deemed to fall under the ownership of the title heir. However, in the case of this case, where the registration of transfer in the name of the title heir overlaps and is made based on the subsequent preservation registration of invalidation, even if the exclusion period of the right to claim recovery of inheritance has expired, the true heir may seek cancellation on the ground that the above inherited property is still owned by the true heir on the basis that the registration of transfer in the name of the title heir is null and void due to the expiration of the exclusion period.

Therefore, in this case where the plaintiff asserted that he was co-owner of each of the lands of this case based on the previous preservation registration and sought the cancellation of the registration of transfer of ownership in the name of the defendants based on the subsequent preservation registration, even if the right to claim for recovery of inheritance has expired due to the expiration of the exclusion period, unless there is any assertion or proof that the previous preservation registration is invalid, it cannot be deemed that the plaintiff's husband non-party 9 lost ownership in each of the lands of this case. Thus, the above assertion by

(3) Whether the registration of ownership transfer, etc. in the name of the Defendants cannot be cancelled by a valid registration consistent with the substantive relationship

The Defendants also asserted to the effect that since the statute of limitations for the acquisition of possession was completed on November 19, 2009 by Defendant 1 et al. by succeeding to the possession of each of the instant lands by Nonparty 8, 10 et al. for 20 years, Defendant 1 et al., the possession of each of the instant lands was valid in accordance with the substantive relationship.

However, as seen earlier, where a registration of initial ownership has been made in duplicate on the same real estate as the registered titleholder, unless the initial registration of initial ownership is null and void, the registration of initial ownership is null and 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 issued in duplicate is invalid regardless of whether it conforms to the substantive legal relationship (see, e.g., Supreme Court Decisions 93Da20177, 20184, Sept. 20, 1996; 2007Da63690, Feb. 14, 2008), even if Defendant 1 et al. did not assert and prove that the pre-registration of initial ownership registry registry registry was invalid for twenty (20) years as alleged by the Defendants. Thus, the Defendants’ assertion that it conforms to the substantive legal relationship 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.

(4) Whether a prior preservation registration is void by a registration to be closed pursuant to the Real Estate Registration Rules

Finally, Article 117 of the Rules on the Registration of Real Estate provides that "in case where a person whose last ownership in the registration form for a double registration is transferred the ownership directly or by transfer from a person whose last ownership is registered in another registration form for another registration form, and where the registration form for another registration form is a prior registration form without any registration for rights other than ownership, etc., such another registration form shall be closed." The latter registration form for the transfer of ownership in the name of the Defendants, etc. shall be transferred in sequence from Nonparty 5, who is the last owner of the preceding registration, to Nonparty 8 and 10, etc., and since there is no registration for rights other than ownership, the registration form for the registration of the preceding registration shall be closed pursuant to Article 117 of the Rules on the

However, Article 117 of the Regulations on the Registration of Real Estate concerning the Adjustment of Overlapping Registration is merely a provisional and procedural provision that requires a registry official to adjust overlapping registration for the same real estate in a way that the registry official closes the registration form, and the reorganization of such duplicate registration does not affect the substantive legal relationship (see Article 115(2) of the Regulations on the Registration of Real Estate). In this case, even if the registration form for the preceding preservation registration is closed, unless the preceding preservation registration is cancelled, it cannot be said that the latter registration does not constitute duplicate registration or that the latter registration is valid, and therefore, the above assertion by the Defendants is without merit.

C. Sub-decision

Therefore, the plaintiff is a co-owner of each land of this case, and the registration of transfer of ownership in the name of the defendants, which was completed on the basis of the subsequent preservation registration, shall be deemed null and void. Therefore, the defendants are obligated to implement the procedure for cancellation registration of transfer of ownership in the name of the above defendants to the plaintiff seeking the exclusion of interference as preservation act of

3. Conclusion

Therefore, the plaintiff's claim against the defendants (the conjunctive claim against the defendant 1 et al.) is justified, and the judgment of the court of first instance is just, and it is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Park Ho-hoon (Presiding Judge)

1) On September 11, 1940, the name of Nonparty 22 was changed to Nonparty 6.

2) However, according to Gap evidence 12-1, the non-party 8 filed a lawsuit claiming recognition against the prosecutor after the cancellation of the above family register (the Gwangju District Court 93D6543, Jun. 9, 1994, and the judgment became final and conclusive at that time. Thus, it is reasonable to view that the non-party 8 obtained inheritance of the land before division at the time of non-party 5's commencement of inheritance. However, according to the evidence 12-1, 2, and 3, it is reasonable to view that the non-party 8 filed a lawsuit claiming recovery of succession to the non-party 90, Gwangju District Court 94D1382, the non-party 2, and the non-party 99, the non-party 2, the non-party 3, the non-party 3, the non-party 4, the 90-party 9, the non-party 2, the 97-party 1, the inheritance recovery period of Australia, and the non-party 2, the above judgment dismissed.

3) At the time, the land in dispute over the previous lawsuit was indicated as each of the land in this case, which was the land before conversion or division into the area of each of the land in this case, and was indicated as the land in this case for convenience.