Plaintiff (Law Firm Il, Attorneys Kim Jong-chul et al., Counsel for the plaintiff-appellant)

Republic of Korea (Attorney Lee Jae-young, Counsel for defendant-appellee)

September 20, 2007

Seoul Central District Court Decision 2005Da350435 Decided November 14, 2006

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. The defendant will implement the procedure for the registration of ownership transfer based on the title trust as of February 28, 200 with respect to the portion of 67.5/75 square meters in Jung-gu, Seoul (the name of Dong and lot number 1 omitted) and 41.7 square meters (hereinafter referred to as the "land of this case") among the land of this case, the procedure for the registration of ownership transfer based on the date of service of the application for alteration of the purport of the registration of ownership transfer as of September 13, 2006, which connects each point of 1, 4, 5, and 1 of the attached drawing in sequence among the land of this case.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence Nos. 1, 2, 9 through 11, and 15-1, 2, Gap evidence Nos. 7, 16 through 19, Gap evidence No. 8-1 through 3, Eul evidence No. 1, 2, Eul evidence Nos. 2 through 6, 8, 10, 11, 13, Eul evidence Nos. 7 and 12-1 through 4, and the whole purport of the pleadings as a result of each appraisal by the non-party No. 1 of the first instance trial.

A. History of the instant land

(1) On October 27, 1965, the Defendant completed the registration of ownership transfer for the reason of reversion of rights on September 11, 1948, as to Jung-gu Seoul Special Metropolitan City (Dong name and lot number 2 omitted) 75 square meters (247.9 square meters, hereinafter referred to as "the land before subdivision").

D. On September 9, 1961, before the completion of the registration of ownership transfer, the Defendant sold 7.5 square meters of the land before subdivision to Nonparty 2 for one year in accordance with the lease agreement on the property devolving upon ownership. On October 10, 1961, the Defendant sold to Nonparty 2 the land at KRW 7.5 square meters adjacent to the Dong office (number 3,4,5 omitted) in Seoul, the land before subdivision (number 3,4,5 omitted) and the land at approximately 75 square meters (number 1,4,5 omitted), adjacent to the Dong office (number 3,4,5 omitted), which is the land before subdivision. However, the land before subdivision was sold to Nonparty 2 at KRW 70,00,000,000 of the land before subdivision, and the registration was again sold to Nonparty 2 at around 12, 1964.

(1) On March 25, 1952, the Ministry of Labor published an urban planning for the construction of a road of 35 meters wide from March 25, 1952 to the 4th square of Shindong (Seoul), and accordingly, on January 30, 1964, the land before subdivision was divided into the instant land of Jung-gu (Dong name and lot number 1 omitted) to 41.7 square meters and the instant land of 41.7 square meters to be incorporated into the road site (number 6 omitted) to 206.3 square meters (hereinafter “road site”). The subdivision registration following subdivision was completed on July 29, 195. As for the above 7.5 square meters sold by Nonparty 2 to Nonparty 3, the said 7.5 square meters sold to Nonparty 3 on October 27, 1965, each of the instant land and shares was transferred from each of the instant site to 75 square meters on July 5, 1975.

Applicant and thereafter, Nonparty 3 completed the registration of ownership transfer on the two lands on September 1, 1967 on the ground of sale on August 10, 1967 by Nonparty 4, 7.5/75 of co-ownership on August 10, 1967, and Nonparty 4 completed the registration on February 28, 1980 on the ground of sale by the Plaintiff on February 25, 1980.

(b) New construction and enlargement of a building;

(1) On June 5, 1963, Nonparty 2 was issued with a position certification source as to the part of the instant land “A” purchased from the Defendant on or around June 5, 1963, and thereafter, Nonparty 3 divided the instant land, including the part of “A” into the land before subdivision, and completed the registration of preservation of ownership on or around December 1, 1964 under one’s name, the part of the Seoul Jung-gu (Dong name and lot number 7 omitted), which is the adjoining land of this case (Dong name and lot number 8 omitted) [the part partitioned into 20 square meters (Dong name and lot number 8 omitted) and 1.4 square meters (number 9 omitted) and (4) 1.4 square meters (4.6 square meters (4.6 square meters) and 205 square meters, and newly constructed the office building and building under one’s name.

B. On November 27, 1965, Nonparty 3 added the land of this case prior to the completion of the division to the site of the above building (the name and lot number 1,8,9 omitted) and added the land of this case to the site of the above building (the building site of this case). Nonparty 3 added the land of this case prior to the completion of the division to the site of the above building (the building site of this case shall be 29 square meters and 29 square meters and 3 square meters, 3 square meters and 4 square meters and 29 square meters and 3 square meters, 4 square meters and 5 square meters and 20 square meters, 3 square meters and 4 square meters, 8 square meters and 9 square meters and 9 square meters, and the building site of this case shall be 9 square meters and 4.7 square meters and 9 square meters, and the building site of this case shall be 14 square meters and 9.7 square meters, and the building site of this case shall be 14 square meters and 14.7 square meters as of each of this case.

C. The plaintiff's possession and disposition of the land and building of this case

(1) On February 25, 1980, the Plaintiff purchased the instant building from Nonparty 4 in KRW 30,384,039, the Plaintiff occupied the instant land by occupying the instant building as its site, etc., by occupying the instant land, 7.5/75 shares (in fact, 7.5/75 shares each of the instant land (number 6 omitted), which was already divided, and (in fact, 6.5/75 shares each of the instant land) of KRW 75 square meters (number 6 omitted), approximately 69.1 square meters, (number 8 omitted), and (number 9 omitted), approximately 4.6 square meters, and the instant building on the ground, which was owned in KRW 30,384,039.

B. On September 15, 2006, the Seoul Jung-gu, including the land in this case, was implemented the urban environment rearrangement project in the Jung-gu, Seoul (Dong name omitted), and the consultation on compensation under the Act on the Improvement of Urban Areas and Residential Environments, the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, and the notification of the procedure for subsequent expropriation of land was made. On May 3, 2006, the Plaintiff sold the building in this case on the above three lots of land including the land in this case to the non-party corporation (hereinafter the non-party corporation), the implementer of the urban environment rearrangement project (hereinafter the non-party corporation), and the non-party corporation, the share in this case among the land in this case, and the land in this case, the registration of ownership transfer was completed on the land in this case on May 3, 2006.

2. Judgment on the main claim

A. The plaintiff's assertion

The Plaintiff, around November 27, 1965, asserted that the prescriptive acquisition of the instant land and the instant land on three parcels of the Seoul Jung-gu (Dong name and its lot number 8, lot number 9 omitted), occupied and used all of the instant land as the site for the instant building, and that the Plaintiff occupied the instant land and the instant land as the site for the instant building for at least 20 years from February 28, 1980, purchased from Nonparty 4, and occupied the instant land and the instant land as the site for the instant building, and that on February 28, 2000, the prescriptive acquisition period for the instant land, other than the Plaintiff’s share, was completed on February 28, 2000, and sought implementation of the procedure for the registration of ownership transfer against the Defendant.

B. Determination

The facts that the Plaintiff occupied and used the instant land for not less than 20 years as the site, etc. of the instant building since the Plaintiff purchased the instant building on 7.5 square meters from Nonparty 4 on February 28, 1980, 7.5 square meters in Seoul Jung-gu (Dong name and lot number 8 omitted), 69.1 square meters in Seoul, 4.6 square meters in 4.6 square meters in 20 square meters in 20 or more in 20 years in 1980.

However, as seen earlier, since Nonparty 2 sold “A” portion of the instant land in the way of transfer and acquired it by specifying its location and size, the Plaintiff should be deemed to have known that the part purchased by the method of transfer was 7.5 square meters. Since the Plaintiff concluded a sales contract after confirming ownership and size by a certified copy of the register or cadastral record prior to the conclusion of the sales contract, if the site area of the building subject to sale exceeds that on the register, it shall be deemed to have purchased and sold the excess portion. Therefore, the Plaintiff’s possession is deemed to have been another owner’s ownership in the nature of its title (see Supreme Court Decision 96Da4135, Jan. 24, 1997). The Plaintiff’s total size of the portion purchased by Nonparty 2 and No. 8135, Nov. 24, 1997; and the Plaintiff’s portion of the portion of the land owned by Nonparty 1 and No. 4136, Sept. 9, 197.

Ultimately, since the Plaintiff’s possession of the part other than the “A” portion of the instant land is deemed as the possession by the nature of the source of title, the above assertion premiseds on the Plaintiff’s possession of the entire land as the intention of ownership is without merit.

3. Judgment on the conjunctive claim

A. The plaintiff's assertion

The plaintiff asserts that the part of "A" portion of the land of this case, which falls under 24.8 square meters (7.5 square meters) among the land of this case, belongs to the part purchased by dividing the land before subdivision from the defendant, and the plaintiff, via Nonparty 3 and 4, also classified this part and purchased it in sequence, and completed the registration of ownership transfer with respect to the portion 7.5/75 square meters only for the registration payment. Thus, the 67.5/75 portion of the land of this case, which remains in the defendant's future, is title trust with the plaintiff who purchased the above portion of "A" from the non-party 2, and the plaintiff expressed his intention to cancel the title trust by delivering the application for change of claim and cause of claim on September 13, 2006 to the defendant. Thus, the defendant asserts that the plaintiff is liable to complete the registration of ownership transfer with respect to the above portion of "A" portion on the ground of termination of title trust.

B. Determination

The plaintiff's above assertion is based on the premise that the plaintiff and the defendant are in a sectionally owned co-ownership relationship, and the plaintiff transferred 7.5/75 shares of the land of this case to the non-party company on May 15, 2006, which was before the plaintiff made the above assertion to the non-party company on May 15, 2006, due to sale and purchase. Thus, so long as the plaintiff could have been aware that it had already been out of the co-ownership relationship with the defendant, the above argument is without merit (the plaintiff is not only the own share of the land of this case, but also the share of the plaintiff remaining in the above (number 6 omitted) portion of the land of this case, which is divided into the road site, but also the transfer registration is made, and if the plaintiff received the purchase price from the non-party company, it can be said that the sectionally owned co-ownership relationship between the plaintiff and the defendant was resolved, or that the plaintiff did not own the land of this case to the non-party company as co-owner's sectionally owned ownership relationship with the non-party company (the non-party company.).

4. Conclusion

Therefore, all of the plaintiff's main and ancillary claims are without merit, and they shall be dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form drawings and appraisal drawings omitted]

Judges Lee Dong-dae (Presiding Judge)