[1] Presumption of change of owner in the old forest register

[2] The presumption of transfer of ownership that has been filed under the name of the former owner after his death (affirmative with qualification)

[1] Article 5 of the former Enforcement Rule of the Joseon District Decree (amended by the Ordinance of the Ministry of Government Administration and Home Affairs No. 45 of March 31, 194) (amended by the Ordinance of the Ministry of Shipbuilding No. 69 of March 31, 194) (amended by the Ordinance of the Ministry of Government Administration and Home Affairs No. 45 of March 31, 194) which applies mutatis mutandis pursuant to the former Rules of the Joseon Forest Register (amended by the Ordinance of the Ministry of Shipbuilding No. 69 of March 31, 194) provides that no registration shall be made in the forest land register unless a notice is given by the registry office. Thus, the entry of the owner's change in the old forest land register shall not be deemed to have been made by the public official's notification pursuant to the above provisions, and if

[2] The ownership transfer registration filed under the name of the former owner after the death of the former owner has already existed, but there is no room for recognizing the presumption of its registration since it shall be deemed as a registration invalidation, unless there is a special circumstance where the former owner's application for registration is filed by the heir, if the predecessor lives in the case where inheritance has commenced with the person liable for registration while the former owner has not yet filed an application for registration, or where the former owner's application for registration is filed by the heir

[1] Article 3 of the former Rules on the Ledger of Shipbuilding Forest (Ordinance No. 69 of the Ministry of Government Administration and Home Affairs of March 31, 1943), Article 5 of the former Enforcement Rule of the Decree on the Establishment of Shipbuilding (Ordinance No. 45 of the Ministry of Government Administration and Home Affairs of March 31, 194), Article 186 of the Civil Code / [2] Article 186 of the Civil Code

[1] Supreme Court Decision 76Da2042 delivered on April 12, 197 (Gong1977, 1004) Supreme Court Decision 93Da5383 delivered on October 26, 1993 (Gong1993Ha, 3170), Supreme Court Decision 94Da32900 delivered on July 14, 1995 (Gong1995Ha, 2784), Supreme Court Decision 95Da14701, 14718 delivered on September 5, 1995 (Gong195Ha, 3349), Supreme Court Decision 201Da7868 delivered on February 29, 202 (Gong2002, 7639 delivered on September 198, 209) / Supreme Court Decision 95Da197989 delivered on September 38, 197 (Gong20989)

Plaintiff 1 and 7 others

Defendant

Daegu District Court Decision 2002Na7747 delivered on December 4, 2002

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the fact that on March 31, 1918, the plaintiff was the deceased non-party (the deceased on April 20, 194) who was the deceased deceased (the deceased on May 24, 194) in the name of the deceased on March 31, 1918, that the ownership transfer registration was made in the name of "the defendant (the deceased on May 24, 194)" before and after the 6/25 incident, the registry was lost before and after the 6/25 incident, and the restoration registration was not made on December 8, 1994, that the plaintiff was divided into the forest land of this case 10,09 square meters (the "forest before the division"). The non-party's claim for the registration of ownership transfer of the forest of this case was made in the name of the defendant on the grounds that there was no further evidence that the ownership transfer registration was made in the above non-party's name prior to the division.

Article 5 of the former Enforcement Rule of the Shipbuilding Decree (Ordinance of the Ministry of Government Administration and Home Affairs No. 45, Mar. 31, 1943) which applies mutatis mutandis under the former Rules of the Shipbuilding (Ordinance No. 69, Mar. 31, 1943) provides that no change in ownership (including the date of change in ownership) shall be registered in the forest register unless a notice is given by the registry office. Thus, if the ownership is registered in the forest register, the entry in the previous forest register shall not be deemed to have been made by the registry officer's notification under the above provisions. Therefore, if the ownership is registered in the forest register, the ownership transfer registration in its name shall be completed (see Supreme Court Decision 76Da2042, Apr. 12, 197; Supreme Court Decision 94Da3290, Jul. 14, 1995; Supreme Court Decision 2005Da1478, Apr. 16, 1995). 205.

2. However, even though the court below recognized that the above non-party died on April 20, 1941, it is hard to accept the judgment below that the registration of ownership transfer was made on May 24, 1943, the non-party's post-post (this means that the registration of ownership transfer was made on the above date) under the name of "Defendant (Ocheon Chang Changwon)" in the old forestry book, and it is insufficient to conclude that the registration of ownership transfer was invalid.

The ownership transfer registration filed under the name of the former owner after the death of the former owner has already existed the grounds for registration, but where the decedent is living in the case where the inheritance had commenced with the person liable for registration during the absence of the application for registration, or where the heir files an application for registration, or where special circumstances exist such as the death of the principal or his/her agent before the registration is completed after the public official received the application for registration, it shall be deemed as the registration invalidation and there is no room for recognizing the legal capacity for such registration (see, e.g., Supreme Court Decisions 83Da597, Aug. 23, 1983; 88Da29986, Oct. 27, 1989; 94Da23999, Feb. 28, 1995; 95Da51991, Nov. 28, 1997). Therefore, a person who claims the validity of the registration filed under the name of the deceased and made under the above circumstances should assert and prove it.

Nevertheless, in this case where there is no assertion or proof as to the above special circumstances, the court below held that even if the registration of ownership transfer was completed after the non-party who is the person liable for registration died, such fact alone is insufficient to readily conclude that the registration is null and void. It is erroneous in the misapprehension of legal principles as to the presumption power of registration, which affected the conclusion of the judgment. The ground of appeal

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)