Where land whose boundary and actual boundary are different in the cadastral map is electricly traded, the criteria for determining the scope of land ownership;

Where a parcel of land is registered in the cadastral record as a parcel of land under the Cadastral Act, the land shall be specified by its registration, and the scope of its ownership shall be determined by the boundary on the public register regardless of the actual boundary, and even if the boundary indication on the cadastral map was indicated differently from the actual boundary due to the mistake of partition survey, etc., barring any special circumstance, the sale and purchase of the land shall be deemed to be subject to the sale and purchase of the land, the boundary on the cadastral record and the boundary on the cadastral record of which the scope of ownership is determined by the boundary on the cadastral record, regardless of the actual boundary, unless there are special circumstances. However, in the preparation of the cadastral map, the boundary on the cadastral map has been prepared differently from the actual boundary, and the boundary on the cadastral map has come to be inconsistent with the actual boundary. Even if the land was sold before the transfer, the boundary on the land shall be determined by the actual boundary,

Article 3 of the Cadastral Act, Articles 212 and 563 of the Civil Act

Supreme Court Decision 94Da57879 delivered on April 14, 1995 (Gong1995Sang, 74 delivered on November 9, 1993) Supreme Court Decision 95Da2333 delivered on February 9, 1996 (Gong1996Sang, 896)

Plaintiff (Counter-Defendant) (Attorney Kim Young-han, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Daejeon Law Office, Attorney Oh Dong-dong, Counsel for defendant-Counterclaim)

Daejeon District Court Decision 93Na4432, 4449 delivered on November 8, 1995

The part of the judgment of the court below concerning the principal lawsuit shall be reversed and the corresponding part of the case shall be remanded to the Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the evidence adopted.

가. 충남 천안군 병천면 병천리 164의 8 대 268㎡(이하 이 사건 대지라고 한다)에 관하여 1990. 6. 8. 원고 명의의 소유권이전등기가 경료되어 있고, 피고가 이 사건 대지 중 원심 판결문 첨부 별지 도면 표시 ㈏부분 12㎡를 주택 부지로, ㈐부분 16㎡를 부속사 부지로, ㈎부분 28㎡를 위 주택의 마당으로 각 점용하고 있다(이하 ㈎, ㈏, ㈐부분을 이 사건 계쟁토지라고 한다).

B. The site of this case and the land of 164-7 and 164-9 of the same Ri, i.e., the site of this case and the land of 164-7 and 164-9, which were owned by the Plaintiff, were the land of 164-1 and 214 of the same Ri before the date of 1965, and registered in the name of Nonparty 1.

C. A house owned by the Defendant and its affiliated companies were located in around 1935. The above 164-7 ground houses were located in 1959. The above 164-9 ground houses in this Ri were located in 1939. The 164-1 unit and 214 unit houses prior to the division were occupied by five households, including the Defendant. The above 1 unit and the 214 unit houses were purchased from the above 1st unit of houses and their sites, which were 164-1 unit and 214 unit of 164-1 unit and 164 unit of 164 unit of 4th unit of 165, and the 16th unit of 16th unit of 16th unit of 16th unit of 4th unit of 16th unit of 16th unit of 4th unit of 16th unit of 14th unit of 16th unit of 16th unit of 16th unit of 14th unit of 16th unit of 2.

D. During the lower judgment, the Defendant filed an application for the correction of a boundary with the head of Si/Gun/Gu on the ground that the boundary in the cadastral map prepared by the Defendant on the basis of the actual boundary of land and the land adjacent thereto does not coincide with the cadastral map prepared on the basis of the survey conducted on September 17, 1965, and requested the Defendant to prepare a cadastral map in the cadastral computer room as alleged by the Defendant. On August 9, 1994, the Defendant registered the land of 164-10 square meters in the same Ri as at September 17, 1965 as at September 17, 1965, but the Defendant filed an application for the correction of a boundary with the purport to correct it with a larger of 41 square meters and a larger of 203 square meters, and the relevant administrative agency did not correct the boundary until the date of closing the argument in the lower judgment.

원심은 위와 같은 사실에 터잡아, 이 사건 대지 중 계쟁토지 부분을 제외한 부분과 계쟁토지의 일부(56㎡－41㎡＝15㎡ 정도)는 원고의 소유로 추정되나(위와 같이 지적관서의 지적도 재조제 미필로 원심 변론종결 당시로서는 특정할 수 없다), 한편 1965. 9. 17. 분할 전의 같은 리 164의 1 대 214평을 분할할 때에 피고를 포함한 각 부동산의 소유자들이 당시 자신들이 소유하고 있는 현상대로 분할하기로 하여 그에 따라 측량을 하였는데, 후에 천안군수가 이 사건 대지에 인접한 피고 소유의 같은 리 164의 10 대지의 측량이 잘못되었다고 하면서 그 면적이 등기부나 지적공부에 등재된 것처럼 162㎡가 아닌 203㎡로 그 동안 사용하여 오던 지적도의 경계가 잘못 되었다고 하고 있으므로, 그와 같이 경계가 잘못 획정된 지적도에 근거한 이 사건 계쟁토지 부분에 관한 원고 명의의 소유권이전등기의 추정력은 번복되었고, 따라서 ㈏, ㈐부분 지상 건물의 철거와 이 사건 계쟁토지의 인도를 구하는 원고의 본소 청구는 더 나아가 살필 필요 없이 이유가 없다고 판단하였다.

2. Judgment of party members

A. Reviewing the evidence admitted by the court below in comparison with the records, the remaining parts of the fact-finding of the court below, except for the part that the cadastral map correction is not made even though the defendant filed an application for cadastral map correction with the head of the Si/Gun in the above fact-finding of the court below ( there is no evidence to acknowledge it in the record, and rather, according to the statement of the questioning letter of the head of the Si/Gun of the Si/Gun in receipt of a party member after the appeal, the defendant still did not file an application for cadastral map correction, and there is no

B. However, if a land is registered in the cadastral record on one parcel under the Cadastral Act, the land is specified by this registration unless there are special circumstances. The scope of ownership is determined by the boundary on the public register regardless of the actual boundary, and even if the boundary indication on the cadastral map is indicated differently from the actual boundary due to the mistake of partition surveying, barring special circumstances, the sale and purchase of the land shall be deemed to be subject to the sale of the land, the boundary on which the scope of ownership is determined by the cadastral record and the cadastral record regardless of the actual boundary. However, in preparing the cadastral map, the boundary on the cadastral map was prepared differently from the true boundary line due to a technical error, so the boundary on the cadastral map becomes inconsistent with the actual boundary, and even if the land was sold before it, the boundary on the land shall be determined by the actual boundary (see, e.g., Supreme Court Decisions 93Da2845, Nov. 9, 193; 2000Da19849, May 198, 1993; 200Da196984, May 198, 198.

Nevertheless, the court below determined that the land in this case does not affect the plaintiff's ownership, on the premise that the non-party 1, the non-party 3, the non-party 4, and the non-party 5, who purchased and sold the site in the order of 164-1 to 214 of the same Ri prior to the division, did not intend to trade the land, the scope of ownership of which has been determined by the cadastral record, but did not confirm the fact that the non-party 5, who purchased and sold the land at the de facto boundary, and the above non-party 5, made a donation of the land in this case to the plaintiff with such intent, without confirming the fact that the boundary line at the time of the division of the site in this case was erroneously defined differently from the boundary line at the time of the actual division, is erroneous in the misapprehension of legal principles as to the determination of the scope of land ownership, and it is evident that such illegality affected

3. Conclusion

Therefore, the part of the judgment of the court below regarding the principal lawsuit shall be reversed, and the case shall be 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 Jong-soo (Presiding Justice)