[1] Whether a person, who actually owns an unclaimed real estate before the amendment by Act No. 3562 of April 3, 1982, can register the ownership of the previous real estate by obtaining a certificate under the above Act (negative), and whether the presumption of right can be granted to the registration made in violation of the above Act (negative)

[2] Where a registered titleholder prior to the registration of transfer of ownership under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership is an unentitled person, and the registration of transfer of ownership is to be cancelled as a cause invalidation, whether the presumption of registration is reversed (affirmative)

[1] Before the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (hereinafter “Special Measures Act”) was amended by Act No. 3562 on April 3, 1982, only the person who actually acquired or succeeded to unregistered real estate from the owner on the registry, or the person who actually acquired or succeeded to the unregistered real estate, can apply for registration of preservation of ownership by attaching the land cadastre of the above modified registration, and the person who actually owned the unregistered real estate can not obtain a certificate issued under the same Act and obtain a registration of preservation of ownership. Thus, the registration made in violation of this Act cannot be granted the presumption of right.

[2] The presumption of ownership transfer registration under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate is presumed to be a registration that conforms to the substantive legal relationship, but the registration of ownership transfer is also caused by the succession of ownership from the former registered titleholder, and a letter of guarantee and a written confirmation also guarantee or confirmation of the fact of succession acquisition. Therefore, if the former registered titleholder is a non-entitled person, and the registration of ownership transfer should be cancelled as the invalidation

[1] Articles 6, 7, and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094 of Dec. 31, 197), Article 186 of the Civil Act / [2] Articles 6, 7, and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094 of Dec. 31, 197), Article 186 of the Civil Act

[1] Supreme Court Decision 96Da33501 Decided April 11, 1997 (Gong1997Sang, 1419) / [2] Supreme Court Decision 2017Da26017 Decided January 25, 2018 (Gong2018Sang, 513)

Plaintiff (Law Firm Aba, Attorneys Yoon- Promotion et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na14477 delivered on May 1, 201

Suwon District Court Decision 2015Na13369 decided August 9, 2016

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court determined that each of the instant registrations of ownership transfer cannot be reversed even if each of the instant registrations is null and void, on the ground that, in light of the fact-finding relation, etc. as to title trust, the evidence submitted by the Plaintiff alone did not prove that the letter of guarantee, which served as the basis for the instant registration of ownership transfer, is forged or falsified, or that the Defendant’s assertion on title trust is not true, and the presumption of each of the instant registrations of ownership transfer cannot be reversed.

2. Before the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (hereinafter “Special Measures Act”) was amended by Act No. 3562 on April 3, 1982, only the person who actually acquired or succeeded to unregistered real estate from the owner on the registry, or the person who actually acquired or succeeded to the unregistered real estate, can apply for registration of preservation of ownership by attaching the land cadastre of the above changed registration, and the person who actually owned the unregistered real estate can not file an application for registration of preservation of ownership with a confirmation issued in accordance with the prescribed procedure. Since the person who actually owned the unregistered real estate cannot obtain a confirmation issued under the same Act, the presumption of right cannot be granted to the registration made in violation of the same Act (Supreme Court Decision 96Da33501 delivered on April 11, 1997).

According to the records, the deceased was recorded as the owner of the land as the land cadastre was destroyed by the Korean War in 6.25 and the cadastral record was restored in around 1955. Each of the registration of preservation of ownership of this case is recognized by the former Act on Special Measures (amended by Act No. 3094, Dec. 31, 1977). However, the judgment of the court below which acknowledged the legal principle as to the right of registration pursuant to the former Act on Special Measures cannot be recognized (see Supreme Court Decision 2010Da21757, Jul. 8, 2010) since the presumption of right cannot be acknowledged on the above land register restored before the enforcement of the Special Act on Special Measures, which was amended by Act No. 2801, Dec. 31, 1975 (see Supreme Court Decision 2010Da21757, Jul. 8, 2010). Ultimately, each of the land of this case constitutes the owner’s unregistered real property and thus, cannot be registered.

In addition, although the ownership transfer registration under the Act on Special Measures is presumed to be a registration consistent with the substantive legal relationship, the registration of ownership transfer is deemed to have been acquired by succession from the former registration titleholder, and as a guarantee and confirmation certificate also are guaranteed or confirmed, if the former registration titleholder is an unentitled person, and the registration of ownership transfer from the former registration titleholder is to be cancelled as a cause invalidation, the presumption power of the registration is reversed (Supreme Court Decision 2017Da260117 Decided January 25, 2018). Therefore, the lower court erred by misapprehending that the invalidation of the cause of each of the instant registration of ownership transfer does not affect the presumption power of each of the instant registration of ownership transfer.

3. However, according to the reasoning of the judgment below, the court below determined that the defendant trusted each of the land of this case to the deceased and the title holder of the registration of ownership ownership by taking into account the following facts: the defendant used the name of the clan of the deceased and the defendant mixedly; the defendant owned the minutes of the clan of the deceased and the accounting book; the defendant and the defendant's chairperson were the same clan formed for the purpose of religious rites of the deceased and the deceased, the deceased and the deceased for the purpose of protecting the graves; each of the land of this case was managed by the defendant; the title holder of each of the registration of ownership ownership of this case is the defendant's member and the remaining title holders, other than the non-party 5, decided to return each of the land of this case to the defendant's name.

In light of the records, the above decision of the court below on title trust is just, and eventually, the defendant terminated the title trust contract with the deceased and completed the registration of title transfer on each of the land of this case under the name of the defendant after the termination of the title trust contract with the deceased. Therefore, each of the transfer registrations of ownership of this case

Therefore, the judgment of the court below that rejected the plaintiff's claim on the validity of each registration of ownership transfer is just in its conclusion. Contrary to the allegations in the grounds of appeal, the court below did not err by failing to exhaust all necessary deliberations and exceeding the bounds of the principle

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)