Plaintiff (Attorney Kim Si-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (LLC, Kim & Lee LLC, Attorneys Ois-gyon et al., Counsel for the defendant-appellant)

May 14, 2010

Seoul Central District Court Decision 2007Gadan95541 Decided December 2, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

Defendant 1 performed the procedure for registration of preservation of ownership completed on June 2, 1969 by the Gangnam District Court of Seoul, Gangnam Branch of District Court No. 17682, the registration of cancellation of ownership transfer registration completed on June 30, 199, and the registration procedure for cancellation of ownership transfer registration completed on June 30, 199. Defendant 2 completed on June 2, 1969 by the receipt of No. 17682, each registration of preservation of ownership completed on June 2, 1969 and each registration procedure for cancellation of ownership transfer registration completed on June 30, 199 by the receipt of No. 58829, respectively.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The land situation, etc. in the name of Nonparty 1

(1) According to the Forest Survey Report prepared under the Joseon Forest Survey Order in the Japanese colonial era, the forest land was limited to 3,570 square meters in sequence, hereinafter “Gu parcel number 1 omitted,” and hereinafter “Gu parcel number 1 omitted” and “Gu (Gu parcel number 2 omitted) land in the name of Non-Party 1 (Seoul, Gangnam-gu, Seoul) on July 21, 1919, when both land are referred to as “the land of this case” in the name of Non-Party 1 (No. 4252) on July 21, 191 (No. 4252).

(2) The registry and cadastral records on the instant land were entirely destroyed by a war on June 25, 1950.

(b) Cadastral recovery, changes in cadastral register, partition, etc. of old land;

(1) On August 8, 1963, the former (number 1 omitted) land was changed in the previous lot number and land category, and was pointed out as “292 square meters prior to Sejongdong (number 3 omitted).” After which, following the procedure of registration, etc. of conversion into the area, it became “965 square meters prior to Sejongdong (number 3 omitted)” (attached Form 1 real estate; hereinafter “real estate 1”).

(2) On August 8, 1963, the former (number 2 omitted) land was cadastrally restored to 1,080 square meters of Sejongdong (number 2 omitted), and was then divided into “3,570 square meters of forest land (number 2 omitted)” (hereinafter “land before the division of the instant 2 and 3 real estate”), “2,618 square meters of forest land (number 2 omitted; hereinafter “the instant real estate 2 omitted”); 2,618 square meters of forest land (number 4 omitted); and 3,52 square meters of forest land (number 2 omitted); 2,618 square meters of forest land (number 4 omitted); and

C. Registration of preservation of ownership in the name of Nonparty 12

(1) On August 8, 1963, the land cadastre and the forest land cadastre prepared by Nonparty 1 at the time of the cadastral recovery, Nonparty 1 was the owner on the ground of Nonparty 1’s occurrence. On May 12, 1969, the name of the owner was corrected to Nonparty 12.

(2) On June 2, 1969, Nonparty 12, on the basis of the land cadastre and the forest land cadastre, filed a registration of preservation of ownership on the real estate of this case and the land before dividing the two and three real estate of this case.

(3) After that, Non-party 12 died on August 22, 1993. As to the real estate No. 1 of this case, Defendant 1, the person of Non-party 12, and as to the land before the division of the real estate No. 2 and 3, Defendant 2, the person of non-party 12, completed the registration of ownership transfer for the reason of inheritance by agreement division as stated in each claim of the above on June 30, 199.

D. The Plaintiff’s death and inheritance relationship between Nonparty 1 and Nonparty 1

(1) The permanent domicile of Nonparty 1, the Plaintiff’s fleet, at the place of origin of Nonparty 1, the Plaintiff’s fleet, is “Seoul-do Gwangju-gun, Daejeon-do (number 5 omitted),” and Nonparty 1 died on September 5, 1927 at the permanent domicile of the Republic of Korea.

(2) Nonparty 1: (a) under the supervision of the Republic of Korea, Nonparty 2 (the son, the son, the son, the son, the son on December 1915) and Nonparty 3 (the son, the son, the son on January 13, 1916) were killed; (b) Nonparty 2, under the supervision of the son, Nonparty 4 (the son, the son, the son on May 30, 1925), Nonparty 5 (the son, the son on September 5, 1927, the son was deceased; (c) Nonparty 1, the son and the son on the son on the son’s death, the son’s son’s son on the son’s son’s son’s 10 on the son’s son’s son’s son’s 10 on the son’s son’s son’s 10 on the son’s 15th of May 19, the son.

(3) Meanwhile, the non-party 7 (the non-party 1's son's son's son's son's son) died on June 10, 1973, and the plaintiff is one of the deceased non-party 7's son's son.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 30, 45 (including each number), Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff, the non-party 1, the non-party 2 and the non-party 4, the male inheritor at the time of the plaintiff's death, had already been registered in the family registry as the deceased family registry, and the non-party 10's wife became the female head and the property of the non-party 1, but thereafter, the non-party 1's family head's right and property were married again by the non-party 10, and the non-party 1 did not have been selected for a considerable period of time. Thus, according to the old custom prior to the enforcement of the Civil Act, the non-party 7 succeeded to the non-party 1's property as his father, or the non-party 7, the non-party 10, who was the male heir at the time of the non-party 1's death, was registered in the non-party 4's family registry as a legitimate inheritor, and the non-party 7 had an obligation to preserve the above real property under the name of the plaintiff 1 and the co-party 1's co-owner's joint ownership.

B. Determination

(1) First, we examine whether the identity of Nonparty 1, the name of the circumstance, and Nonparty 1, the Plaintiff, is identical.

The above facts and evidence Nos. 3 and 5 as a whole together with the purport of the entire pleadings. In other words, Nonparty 1, the plaintiff's supporting father, the plaintiff's supporting father, is identical to the Chinese name with the non-party 1 ( Chinese name omitted), the legal domicile of the non-party 1, the plaintiff's supporting father, corresponds to the old land and Ri unit. Non-party 1, the supporting father, the plaintiff's supporting father, died after residing in his legal domicile, and Non-party 1, the plaintiff's supporting father, who was a supporting father, was also under the joint situation with the non-party 13 and 14 located near the old land of this case on July 21, 1919. In light of the above circumstances, it is reasonable to deem that the situation of the previous land of this case and the non-party 1, the plaintiff's supporting father-party 1 and the non-party 1, the first half of the plaintiff, the same person.

(2) Next, we examine whether the Plaintiff is Nonparty 1’s property heir.

(A) According to the former customs before the Civil Code enters into force, the family heir shall be the mother of the family head in principle, and even if a married head of the family dies before the commencement of the inheritance, the family head of the family may not inherit the family head of the family even if there is less than two descendants in the family head of the married head of the family, and if there is no right to inherit the family head of the family in the other person, such as the adopted child, etc., he or she shall belong

According to the above facts, the non-party 1 died before the death of the non-party 1. At the time of the death, the non-party 2 married with the non-party 10, and thus, the non-party 7, who is the lineal descendant of the non-party 3, who is the lineal descendant of the non-party 3, is not a successor to the family head.

(B) According to the former custom before the enforcement of the Civil Act, where a married male who is the head of a household dies without a male who is to inherit the head of a household, the right and property inherited to the head of a household shall be succeeded to the person after the birth of the deceased, the mother, the wife, and his/her father who is to inherit the head of a household until the birth of the deceased is selected, in the order of the expenses, and where the adopted children are selected after temporary inheritance, the right and property inherited to the head of a household shall be succeeded to the ex post facto birth. Even if the adopted children who were to temporarily inherit the head of a household without being selected by the adopted children, even though there is no person to succeed to the head of a household, the adopted children shall be allowed to succeed to the right and property of the head of a household, but if the adopted children are not selected within a considerable period from the date of the death or the birth of the adopted children to the head of a household within a reasonable period of time from the date of the death or the birth of the adopted children, the married children's family shall belong to the deceased children.

According to the above facts, Nonparty 1’s wife Nonparty 4’s wife and Nonparty 10, who was the male inheritor at the time of the death of the head of family, were married to Nonparty 1’s property as a female head. On May 31, 1928, Nonparty 1’s wife was married to Nonparty 11, and Nonparty 1’s wife became as a family member of the same family in accordance with the old custom prior to the enforcement of the Civil Act. The fact that Nonparty 1’s wife was not selected after a considerable period of time. The deceased Nonparty 1’s wife did not have been married to Nonparty 6 among the grandchildren of Nonparty 1. According to the above facts, according to the above facts, the property of Nonparty 1’s wife was inherited to Nonparty 6, who was a family member of the same family in accordance with the old custom prior to the enforcement of the Civil Act.

(C) Therefore, the plaintiff's claim is without merit on the premise that the non-party 7, the father of the plaintiff's property owned by the non-party 1, was inherited solely, and that the plaintiff and the punishment were jointly inherited.

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendants shall be dismissed without any justifiable reasons, and the judgment of the court of first instance is unfair with different conclusions, and all appeals by the defendants shall be accepted.

[Attachment]

Judges Jinal Syle (Presiding Judge)