Plaintiff 1 and three others (Law Firm New Daily, Attorneys Cho Yong-il, Counsel for the plaintiff-appellant) who are the taking-over of lawsuit by the deceased non-party 1 (the non-party to the judgment)

Defendant 1 and two others (Attorney Park Jong-chul, Counsel for the defendant-appellant)

May 18, 2011

Daejeon District Court Decision 2009Da5562 Decided August 24, 2010

1. All appeals by the Defendants are dismissed.

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

1. Purport of claim

The Defendants expressed their intent to consent to an application for correction of registered matters with “255 square meters” on the land cadastre as “276 square meters,” with respect to the Daejeon Plue-gu ( Address 2 omitted), Daejeon Plue-gu (the first instance court deemed that the Plaintiffs still filed a claim against “307 square meters,” despite having modified the purport of the claim in the “application for change of the purport of claim and the cause of claim” on August 13, 2010.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Facts of recognition;

A. On November 30, 1954, Nonparty 2: (a) specified the location of 90 square meters in Daejeon Seo-gu ( Address 2 omitted) and 172 square meters (hereinafter “the land before the instant subdivision”); and (b) paid the price in full.

B. On June 4, 1960, the land prior to the instant partition was divided into the same ( Address 2 omitted) and ( Address 1 omitted) and 261 square meters ( Address 1 omitted) and 307 square meters (number 93 square meters), and ( Address 2 omitted) and 261 square meters (number 79 square meters) were again divided into the same ( Address 2 omitted) and ( Address 2 omitted) 255 square meters (number 3 omitted) and 6 square meters, respectively, on July 15, 197.

C. Before April 1954, Non-party 2 had resided on the land above the non-party 2, including the land in this case, newly built a house and a commercial building. The non-party 2 died on July 17, 1958 without completing the registration of ownership transfer as to the non-party 2's property including the land in this case. After Non-party 1 inherited the non-party 2's property alone, he filed a lawsuit against the Republic of Korea on around 2003 against the non-party 1 to file a claim for the registration of ownership transfer as to the non-party 1's non-party 25 m25 m25 m2 in Daejeon-gu, Daejeon ( Address 2 omitted). The above judgment was finalized on November 30, 1954, and it was finalized on January 26, 2007.

D. Nonparty 1 died on May 29, 2009, when the instant lawsuit was pending, and the Plaintiffs are Nonparty 1’s children.

E. Meanwhile, the above building was constructed on the ground of which the time for the construction was unknown on the ground of the building, and Nonparty 3 was the director of this building from March 1, 1955. On June 4, 1960, Nonparty 3 divided the land before the instant partition into the same ( Address 2 omitted) large scale 261 square meters ( Address 79 square meters) and ( Address 1 omitted) large scale 307 square meters (No. 93 square meters) and completed the registration of ownership transfer under the name of Nonparty 2 and Nonparty 2 on April 13, 1961 on the premise that he was jointly removed from the above ( Address 2 omitted), on the premise that he completed the registration of ownership transfer under the name of Nonparty 2 and Nonparty 3 on the ground that he completed the registration of ownership transfer under the name of Nonparty 1 and Nonparty 2, and completed the registration of ownership transfer under the name of Nonparty 1 and Nonparty 2, and completed the registration of ownership transfer under the name of Nonparty 1 and Nonparty 2, 97.7.

F. As to the land before the instant subdivision, the subdivision survey institute was prepared on July 19, 1959 for subdivision (hereinafter “the first measurement institute”) (hereinafter “the first measurement institute”) and without any particular reason, on the part ( Address 2 omitted) of the instant land on the first measurement institute, and the second subdivision survey institute was drafted on December 6, 1959 (hereinafter “the second measurement institute”).

Land ( Address 4 omitted) and ( Address 5 omitted) land adjacent to the land of this case on the 1st measurement map are registered with the same contents until now.

G. The current cadastral map of the instant land is, according to the closed cadastral map drawn up on the basis of the primary survey source map, the area of the instant land is the same as that of the closed cadastral map, whereas the land cadastre is written on the basis of the secondary survey source map, and is registered differently from the cadastral map with the area of the land being the area of 255 square meters.

H. After that, the outcome of the correction of registered matters with respect to the instant land was re-established, which was conducted on the basis of the first and second measurement level, that was conducted in the past without a survey by the actual local survey.

I. In the Daejeon Metropolitan City, which is the management agency in charge of the cadastral record of the instant land, the Sung-gu, Daejeon Metropolitan City, is normal, and the area of the land cadastre drawn up on the basis of the second survey source map is normal, and the boundary of the cadastral map drawn up on the basis of the first survey source with a sign line should be corrected, and the instant land is treated as the “land subject to the correction of the registered matters” and the application for the survey

[Ground of recognition] Facts without dispute, Gap 4 through 15, 18, 23, 34 (including each number), fact inquiry results against the head of the Si/Gun/Gu of the Si/Gun/Gu, the purport of the entire pleadings

2. Determination on the cause of the claim

A. The plaintiffs' assertion

Since the area of the instant land should be based on the cadastral map prepared on the basis of the primary survey source map, the area of the land cadastre registered as 255 square meters ought to be corrected to 276 square meters according to the cadastral map. As such, the Defendants, who are co-owners of the ( Address 1 omitted), who are co-owners of the land abutting on the boundary when the instant land is divided from the land before the instant subdivision, and the said land is divided, should express their consent to the Plaintiffs regarding the application for correction of the registered matters with the “255 square meters” of the registered area of the land cadastre as “276 square meters.”

B. Determination

According to the Act on Land Survey, Waterway Survey and Cadastral Records, a landowner who intends to divide land shall file an application with the competent cadastral authority for subdivision, and (2) An interested person, such as a landowner, etc. shall request a cadastral surveyor to conduct a cadastral survey to conduct a cadastral survey to determine the boundary or coordinates and size of the parcel; and (3) When a landowner finds that a mistake exists in the registered matters in the cadastral record, he/she may file an application for rectification thereof with the competent cadastral authority; where the boundary of an adjoining land is changed due to a correction, he/she shall submit an authentic copy of a final and conclusive judgment capable of setting up against it (Articles 2 subparagraph 4, 23 (1) 3 (d), 24 (1), 79 (1), 84 (1) and (3)).

As acknowledged earlier, ① the current cadastral map of the instant land is the same as the closed cadastral map based on the first cadastral map as the previous cadastral map, ② the second cadastral map was prepared without any specific ground at the time when six months have elapsed from the date when the first cadastral measurement was made with respect to the instant land, and the area of the cadastral map was registered as 255 square meters based on the second cadastral map based on the area of the cadastral map based on the first cadastral survey map; ③ the procedure of dividing the instant land by Nonparty 3 was conducted after Nonparty 2 died, and the said land and the area applied for subdivision were not located within the scope of the original cadastral map, and the land and the area of the land applied for subdivision were not the same as the previous cadastral map, but the area of the first cadastral map was not 90 square meters as the previous cadastral map, and the result of the second cadastral survey cannot be seen as the previous cadastral map being prepared on the ground that there were no special reasons for the lack of the previous cadastral survey data as the area of the land cadastral map (the next cadastral map).

Therefore, the Defendants should express their intent to accept the application for correction of registered matters, which correct the registered area of land cadastre as “255 square meters” as “276 square meters” with respect to the instant land.

The Defendants asserted that the survey won map drawn up on July 19, 1959 was improperly drawn up, and that the survey won map drawn up on December 6, 1959 was lawfully drawn up, and that the size and boundary of the cadastral map based on the survey won map drawn on July 19, 1959 should be corrected based on the area of land cadastre based on the survey won map drawn on December 6, 1959.

However, as shown in the above argument, it is difficult to believe in light of the above circumstances, and there is no other evidence to acknowledge the witness's witness's testimony, the fact-finding results on November 25, 2009 against the head of the Si/Gun/Gu in the first instance court, and the fact-finding results on the head of the Si/Gun/Gu in the trial court.

3. Conclusion

Therefore, the plaintiffs' claims are justified, and the judgment of the court of first instance is just, and the appeal by the defendants is dismissed as it is without merit.

Judges Kim Yong-dae (Presiding Judge)