The owner of the Land Survey Division means the estimated records of registration.

A person who is registered as the owner in the column for the land investigation injury shall not be determined by the land situation. However, unless there is any counter-proof that the substance of the land has been changed by the adjudication, the situation as the owner of the land shall be determined and the circumstance shall be presumed to have been determined.

Article 187 of the Civil Act, Article 9 and Article 15 of the Land Investigation Decree (Ordinance No. 2 of August 13, 1912)

Supreme Court en banc Decision 84Meu1773 Decided June 10, 1986 (Gong1986, 366) Decided 24, 1984 (Gong1989, 1741) decided October 24, 1989 (Gong1989, 1741)

Plaintiff 1 et al., a litigation taking over the deceased Nonparty 1 and two others

Korea

Suwon District Court Decision 93Na606 delivered on April 23, 1993

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, since the above 425 square meters prior to the Gyeonggi-gun ○○○○ (hereinafter “the land prior to subdivision”) was originally owned by the non-party 5, who is the father of the non-party 2, the non-party 3, and the non-party 4 (hereinafter “non-party”), the level of 309 square meters was cultivated as dry field, and the land was constructed and used as a site. The defendant purchased only 309 square meters, which were cultivated as dry field among the land prior to subdivision pursuant to the enforcement of the Farmland Reform Act. The land portion used as the site was not subject to purchase under the same Act, and the purchase under the same Act for the above land portion was not subject to the non-party 6’s original registration of ownership transfer for the reason that the non-party’s right to claim for the registration of ownership transfer was completed on the non-party 1’s land prior to subdivision, and thus, the defendant still completed the registration of ownership transfer for the non-party 1’s right to claim for the ownership registration of this case.

2. However, according to the records, in this case, the deceased non-party 1, who is the party subject to the lawsuit by the plaintiffs, as co-defendant 5, filed a claim for the registration of transfer of ownership on the ground of the completion of the prescriptive prescription on December 31, 1989 on the land in this case and received a favorable judgment in the first instance court. Thus, the plaintiffs should be deemed to have the right to claim the registration of transfer of ownership against the non-party, and it should be deemed that the plaintiffs can be regarded as the right to be preserved in order to exercise the right to claim the cancellation of the above preservation registration in the defendant's name. Therefore, the judgment of the court below that the existence of the right to be preserved in subrogation of the non-party is not recognized, and the decision of the court below should be examined whether the non-party has the right to claim the registration of cancellation against the defendant (refer to the judgment of the court below on June 27,

3. According to the evidence No. 1-1 and No. 2 (Indication and Contents of Land Survey Division) cited by the court below, it is true that the owner of the land prior to the division of the Land Survey Division is "○○ and Nonparty 6". However, there is no other evidence to acknowledge the fact that the land was registered in the above Nonparty 6’s name on the record under the circumstances of Nonparty 6 on the record. Thus, the court below’s reasoning that the above Nonparty 6 was registered in the above Nonparty 6’s name on the record cannot be said to be an appropriate expression.

A person who is registered as a owner in the column for the land investigation injury is not necessarily determined by the land situation. However, unless there is any counter-proof that the substance of the land has been changed by the adjudication, the situation is determined by the owner of the land and the circumstances are presumed to have been determined (see, e.g., Supreme Court Decision 83Meu152, Jan. 24, 1984; Supreme Court Decision 84Meu1773, Jun. 10, 198; Supreme Court Decision 88Meu9852, 9869, Oct. 24, 1989).

However, according to the records, the old land register (Evidence No. 6) of the land before subdivision was examined on July 5, 1912 by the above non-party 5, and the former owner is the non-party 5 even in the redemption ledger (in the case of the fact inquiry from the head of ○○ plane). Even if their entries are not effective to presume the rights of the above non-party 5, it can be the data of fact-finding. In addition, the non-party 7 of the first instance court and the non-party 8 of the original court testimony that the land of this case was owned by the non-party 5. Thus, the court below should examine the circumstances so entered in the old land ledger or the redemption ledger, and make a decision on the above evidence. However, the court below did not have any assertion that the above non-party 5 was acquired by succession and completed the registration of the land of this case from the above non-party 6, who is the circumstance of the above non-party 5, and therefore, the original owner of the land of this case remains the above non-party 6.

4. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles as to the creditor's subrogation right, which affected the conclusion of the judgment, and the grounds for appeal are justified.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)