[1] In a case where the title to file a claim for cancellation of ownership transfer registration is not acknowledged to a person who seeks to cancel the ownership transfer registration, whether the relevant claim may not be accepted even if the registration of invalidity of ownership transfer registration (affirmative), and in a case where a third party who acquired the right to real estate by means of sale, etc. from the former registered titleholder and completed the registration of ownership transfer later by acquiring the ownership of real estate due to the prescriptive acquisition, a person who was the original owner of the real estate loses the ownership, whether the former former registered titleholder may file a claim for cancellation

[2] In a case where Gap et al., completed the registration of ownership transfer based on inheritance of the above land, and Eul et al., entered that Eul et al. completed the registration of ownership transfer based on sale and purchase; Eul et al., completed the registration of ownership transfer based on Eul et al., but Eul et al., transferred the land divided and divided by sale and purchase, and finally completed the registration of ownership transfer by selling and purchase, etc.; Eul et al., demanded Eul to cancel the registration of ownership restoration against Byung local government, the case holding that the judgment below erred by misapprehending legal principles, in a case where Eul et al., sought a cancellation of the registration of ownership restoration against Byung local government since Eul et al. lost ownership of the above land

[1] In order for the Plaintiff to seek cancellation of the ownership transfer registration completed in the name of the Defendant against the Defendant, the Plaintiff must first assert and prove that the Plaintiff had the title to file a claim for cancellation. If it is not recognized that the Plaintiff has such title, even if the registration of invalidation is to be cancelled, the Plaintiff’s claim may not be accepted. If a third party, who completed the registration of ownership transfer by means of sale, etc., is the owner of the original real estate, as the right to the real estate was successively transferred from the Defendant, and the third party, who completed the registration of ownership transfer, loses the Plaintiff’s ownership as the owner of the original real estate due to the acquisition by prescription, even if the registration of ownership transfer in the name of the Defendant is null and void, there is no right to claim cancellation of the ownership transfer registration in

[2] In a case where Gap et al., completed the ownership transfer registration based on inheritance of the above land, and Eul et al., entered that Eul et al. completed the ownership transfer registration based on the sale and purchase; Eul et al., completed the ownership transfer registration based on Eul et al., but Eul et al. acquired ownership by acquiring the ownership by acquiring the prescription period or the prescription period for the acquisition of the registry; and Eul et al., demanded Eul et al. to cancel the ownership registration of the above land, the case holding that the judgment below erred by misapprehending the legal principles, even though Eul et al., even if Eul et al. lost ownership due to the acquisition of ownership due to the acquisition by prescription, as long as Eul et al., lost ownership due to the acquisition by prescription, Eul et al., of the above land, even if Eul et al., had no legitimate title to file a request for cancellation of the

[1] Articles 186, 214, and 245 of the Civil Act; Article 288 of the Civil Procedure Act / [2] Articles 186, 214, and 245 of the Civil Act

[1] Supreme Court Decision 2004Da50044 Decided September 28, 2005 (Gong2005Ha, 1673) Supreme Court Decision 2008Da35128 Decided October 9, 2008 (Gong2008Ha, 1540)

Young-un Partnership (Law Firm Barun et al., Counsel for the defendant-appellant)

Gyeonggi-do (Law Firm Gwangju, Attorneys Yoon Young-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na2004147 decided October 16, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

After finding facts as stated in its reasoning, the lower court rejected the Defendant’s assertion that the Plaintiff did not have any substance as a legal entity or that the Plaintiff ceased to exist after the lapse of 50 years from August 30, 1985.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the facts contrary to what is alleged in the grounds of appeal or by misapprehending the rules of evidence.

2. As to the third ground for appeal

The court below rejected the defendant's defense of prescriptive acquisition on the ground that the defendant's defense of prescriptive acquisition was completed on the ground that the defendant did not have occupied the original land of this case merely because the registration for the recovery of destruction was completed under the name of the defendant, and there is insufficient evidence to find otherwise that the defendant occupied the original land of this case.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the acquisition of prescription by possession, thereby adversely affecting the judgment.

3. Regarding ground of appeal No. 2

A. The defendant's assertion to purchase the original land of this case

For reasons indicated in its reasoning, the lower court determined that it is difficult to recognize that the Defendant purchased the original land of this case from the Plaintiff solely on the basis of the certificate of land ownership or the statement in the farmland ledger to which the Defendant asserted.

In light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the probative value of official documents, thereby adversely affecting the conclusion of the judgment.

B. Plaintiff’s assertion of loss of ownership

1) In order for the Plaintiff to seek cancellation of the ownership transfer registration completed in the name of the Defendant against the Defendant, the Plaintiff must first assert and prove that the Plaintiff had the title to file a claim for cancellation. If it is not recognized that the Plaintiff has such title, even if the registration of invalidation is to be cancelled, the Plaintiff’s claim may not be accepted (see, e.g., Supreme Court Decisions 2004Da50044, Sept. 28, 2005; 2008Da35128, Oct. 9, 2008). If a third party who acquired the right to real estate from the Defendant and completed the registration of ownership transfer becomes disqualified due to the acquisition of ownership to the first owner of the real estate due to the prescriptive acquisition, the Plaintiff cannot claim cancellation of the ownership transfer registration under the name of the Defendant, even if the ownership transfer registration under the name of the Defendant was invalidated, and thus, the Plaintiff cannot claim the Plaintiff to cancel the ownership transfer registration under the name of the Defendant.

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On October 1, 1913, 1913, 17,49 was considered to have been owned by Nonparty 1, and 2,747 was considered to have been owned by Nonparty 2 prior to the opening of the △△-gun △△△-gun △△△△-gun △△△-gun △△△△-do (hereinafter the above △△△△△-gun changed to the said △△△△-dong △△△△△△-gun △△△△△-gun △△△, and the said △△-gun was changed to the said △△△-dong △△△-gun △△△△△

B) Nonparty 1 is the head of Nonparty 3’s family, and Nonparty 1, etc. established the Plaintiff, an unlimited partnership aimed at agricultural management, etc. on August 30, 1935 in order to jointly manage and benefit from Nonparty 3’s miscarriage.

다) △△리 □□□ 토지가 △△리 □□□-▽ 전 4,815평 등으로 분할되었고, △△리 ◇◇◇ 토지가 △△리 ◇◇◇-◎ 전 2,550평 등으로 분할되었다(이하 위 분할된 토지를 ‘이 사건 원토지’라고 한다).

D) Before the instant original land is divided, the copy of the registration certificate of △△-ri land △△△△△-ri and the land at issue of △△-ri △△-ri, and the registration of ownership transfer based on inheritance on the above land on March 28, 193, entered that the Plaintiff completed the registration of ownership transfer based on sale on the above land on December 12, 1935.

E) On December 6, 1954, the receipt of the Government Registry of the Seoul District Court (Seoul District Court’s Office, which was closed in around 1962) was 4421 on the original land of this case, and the receipt date of the registration prior to the destruction was completed on December 6, 1954 (hereinafter “the registration of the restoration of destruction”) under the Defendant’s name, which was the “sale on April 1, 1938,” and the grounds for registration and date of registration.

F) The original land of this case became the land of this case through the land substitution, merger, division, etc. (hereinafter “each of the instant land”).

G) After the completion of the registration for the recovery of destruction of each of the instant land in the name of the Defendant, the right was transferred in sequential order by means of sale, etc., and the registration for the transfer of ownership was completed in the name of the first instance court and the co-defendants of the lower court. The co-defendants of the first instance court and the lower court met all the requirements for the acquisition by prescription or the acquisition by prescription of the registry prior to the closing date of the argument in the lower judgment. The registration for the transfer of ownership of each of

3) Examining the above facts in light of the legal principles as seen earlier, inasmuch as the Plaintiff lost ownership due to the acquisition of ownership by the co-defendants of the first instance court and the lower court as to each of the instant lands on the ground of prescriptive acquisition, the Plaintiff did not have a title to file a claim for the cancellation of the registration of the restoration of loss in the name of the Defendant even if the registration of the invalidation of the cause for the registration of the restoration of loss in the name of the Defendant was made, and the Defendant and the co-defendants of the first instance court and the lower court asserted that the Plaintiff’s claim for cancellation of the registration should be dismissed on the ground that the Plaintiff lost ownership consistently in the course of pleadings. Thus, the lower court cannot accept the claim for cancellation of the registration of restoration of loss in the Plaintiff’s ownership. The lower court also rejected the Plaintiff’s claim for cancellation of ownership transfer registration

Nevertheless, the lower court cited the Plaintiff’s claim for cancellation of the registration of the restoration of loss of this case on the premise that the Plaintiff had a legitimate title to file a claim for cancellation of the registration of the restoration of loss of this case. In so determining, the lower court erred by misapprehending the legal doctrine on the claim for cancellation of invalidation registration, thereby adversely affecting the conclusion

4. Conclusion

Therefore, 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 Seon-soo (Presiding Justice)