Where a land purchaser had his/her own grave installed after the land, the attribution relationship of the land ownership and the legal principles related thereto can be applied to cases where a land purchaser purchased the land after the registration of real estate was implemented and completed the registration of ownership transfer to his/her child during his/her lifetime (negative)

Unlike the case where a purchaser of a parcel of land had a person install his own grave after its own land, it is consistent with our traditional thinking that, rather than allowing his descendants to acquire a private grave with personal funds and dispose of it later easily after his/her sole inheritance, he/she had an intention to have his/her descendants preserve his/her grave permanently with the collective property of a clan that he/she jointly created, rather than allowing his/her descendants to dispose of it later easily. However, such legal doctrine cannot be applied to cases where a purchaser purchased a parcel of land after the enforcement of the current Registration of Real Estate Act (Act No. 536, Jan. 1, 1960) and completed the registration of ownership transfer to his/her child during his/her existence.

Articles 105 and 275 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Doz., Counsel for plaintiff-appellant)

Plaintiff’s clan (Attorney Kim Jong-han, Counsel for defendant-appellant)

Defendant 1 and six others (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 2007Na15545 Decided May 23, 2008

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

The grounds of appeal are examined.

1. Comprehensively taking account of the adopted evidence, Nonparty 1 decided to purchase the forest of this case to use the Plaintiff’s clan for his own clans and descendants’ religious services. On December 30, 1965, Nonparty 1 purchased the forest of this case with Nonparty 2 and completed the registration of ownership transfer on July 21, 1970. Nonparty 1 purchased Nonparty 2’s shares and completed the registration of ownership transfer on March 25, 1985, and Nonparty 1 did not complete the registration of ownership transfer on March 25, 1985 under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3562) for the entire forest of this case. Nonparty 3 died on February 23, 192, Defendant 1, his wife, and Nonparty 2/15, his children, respectively, sent the Plaintiff’s forest of this case to Nonparty 1 and Nonparty 3’s forest of this case to Nonparty 1’s forest of this case to whom Nonparty 1 terminated the registration of title trust.

2. However, it is difficult to accept such a measure by the lower court for the following reasons.

Unlike the case where a purchaser of land had had his own grave installed after the commencement of the registration of ownership transfer, it is consistent with our traditional thinking that, unlike the case where one of the subsequent descendants purchased a grave with personal funds and installed a tomb under the protocol, he owned the property of a clan jointly created by himself, rather than allowing his descendants to dispose of it smoothly, and had his descendants preserve it permanently (see, e.g., Supreme Court Decision 96Da7403, Jun. 11, 1996). However, as in this case, since the purchaser of land purchased the land after the enforcement of the current Real Estate Registration Act (No. 536, Jan. 1, 1960) and completed the registration of ownership transfer for his child during the grace period, the title truster cannot be applied to the case where the title truster transferred the ownership transfer registration for the real estate after the lapse of the grace period of 10 years under the title trust agreement for the plaintiff, who is the third party, under the title truster 1’s title trust agreement and the title truster 14 of the Real Estate Act.

Nevertheless, the court below determined otherwise that the plaintiff's clan acquired the status of the title truster by expressing his/her intention as a beneficiary of the title trust agreement and at the same time terminated the title trust, and accepted the claim for the registration of ownership transfer based on the cancellation of the title trust. Such decision of the court below is erroneous in the misapprehension of legal principles as to the title trust agreement and the Real Estate Real Name Act, 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 Young-ran (Presiding Justice)