[Judgment of the court below]

Defendant (Attorney Lee Dong-sik, Counsel for defendant-appellant)

Ulsan District Court Decision 2010Da3656 Decided November 9, 2011

June 14, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 188,920,720 won with 5% per annum from September 12, 2009 to the first instance judgment, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. Nonparty 3 was the father of the Plaintiff, who died on July 26, 1951, and Nonparty 2 died on May 15, 1981. Nonparty 1 was the father of the Plaintiff and Nonparty 3’s husband, and Nonparty 1 was the husband of the Defendant, and Nonparty 3 was the husband of the Defendant, and Nonparty 3 was the husband of the Defendant, and Nonparty 1 died on November 6, 1985.

B. On June 17, 1948, Nonparty 3 completed the registration of ownership transfer for the above land on the ground of sale on May 25, 198, pursuant to the Act on Special Measures for the Registration, etc. of Real Estate Ownership (Act No. 3094) with respect to the above land on November 25, 198, the non-party 3 completed the registration of ownership transfer for the reason of sale on August 25, 1965, and the non-party 4, who is the defendant's children, completed the registration of ownership transfer for the above land on July 29, 1994 on the ground that the non-party 4, who is the defendant, was inherited on July 29, 194.

C. On the other hand, the registration of ownership transfer was completed on May 17, 1946 with respect to the non-party 1's non-party 1's ownership transfer on the ground of the sale on March 10, 1946 with respect to the non-party 1's 1,351 shares of the non-party 1's dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si (hereinafter "the second land of this case"), pursuant to the Act on Special Measures for the Registration, etc. of Ownership Transfer (Act No. 1657) on March 16, 1958 (the above date of receipt of the registration is deemed to be a clerical error, and the registration of ownership transfer was completed on the ground of the sale on May 7, 1959, and the ownership transfer was completed on the ground of the non-party 1's share on July 20, 2009.

D. On September 11, 2009, the instant land was incorporated into the site for the construction of the Highway between Ulsan and Port, and the Defendant received KRW 188,920,720 (hereinafter “instant compensation”) from the Ministry of Land, Transport and Maritime Affairs as compensation for the shares owned in his own name among the instant land No. 2.

Each description of Gap's 3, 4, and 6 (including each number; hereinafter the same shall apply), and the purport of the whole oral argument, without any dispute (as to the basis for recognition);

2. The assertion and judgment

A. The plaintiff's assertion

① In the first place, Nonparty 3, the owner of each of the instant lands, donated the instant land to Nonparty 2 for the sole cultivation. Nonparty 2 donated one-half of each of the instant land to Nonparty 1 and one-half of each of the instant land to Nonparty 2, and made the lower part cultivated by Nonparty 1, and the lower part of the instant land to Nonparty 2. Thereafter, Nonparty 2 made a registration of ownership transfer in the Plaintiff’s future. Meanwhile, Nonparty 2 and Nonparty 1 exchanged the instant land owned by Nonparty 2 in 1968 and Nonparty 1 of the instant land owned by Nonparty 1 and the instant land owned by Nonparty 2 in order to complete the registration of ownership transfer (hereinafter “instant exchange agreement”) with the Plaintiff on the share transfer to Nonparty 1 and the instant land owned by Nonparty 1 (hereinafter “the share of Nonparty 1”), and the Defendant reached an agreement between Nonparty 2 and the Plaintiff on the registration of ownership transfer to Nonparty 1 for the entire share of the instant land due to Nonparty 2’s death and the ownership transfer transfer to the Plaintiff.

② Preliminaryly, around 1968, Nonparty 2 and Nonparty 1 agreed to exchange the instant land No. 1 and the shares of Nonparty 1, which were owned by Nonparty 2, and subsequently, Nonparty 2 donated his right to Nonparty 1’s shares to the Plaintiff, and accordingly, Nonparty 2 and the Plaintiff cultivated the entire land No. 2. However, prior to Nonparty 1’s completion of the Plaintiff’s obligation to transfer ownership of Nonparty 2’s shares among the instant land No. 2, the Defendant succeeded to the Defendant’s obligation upon Nonparty 1’s death.

③ Finally, the Plaintiff owned and occupied the lower part of the instant land No. 2 and the upper part of Nonparty 1, 676, and the lower part of Nonparty 1, from 1968 to 20 years. As the Plaintiff occupied the entire land No. 2 by peace and public performance with his intention to own for more than 20 years, the acquisition by prescription on the part of the instant land No. 2 owned and possessed by Nonparty 1 was completed around 1988. Accordingly, Nonparty 1 was obligated to complete the registration of ownership transfer with respect to Nonparty 1’s share, and the Defendant succeeded to his obligation upon Nonparty 1’s death.

Nevertheless, while the defendant did not perform his duty to transfer ownership, the shares of the non-party 1 were expropriated as a road site and the defendant's obligation to transfer ownership was impossible. Since the defendant received the compensation of this case, the defendant is obligated to pay the amount equivalent to the above compensation and the delay damages to the plaintiff.

B. The judgment of this Court

A) As to the plaintiff (1) and (2) argument

As long as the registration of ownership transfer on the registry of real estate has been completed, it shall be presumed that the procedure and cause is legitimate, the party who asserts the illegality of the procedure and cause thereof shall be responsible to prove it, and as well, the registration of ownership transfer under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate shall be presumed to be in accordance with the substantive legal relationship. Therefore, the party who seeks to reverse the presumption shall assert and prove that the letter of guarantee or confirmation under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, which forms the basis of the registration,

In full view of the purport of the argument in the statement of evidence Nos. 1, 8 through 11, 14, 18, and 19, Nonparty 1 did not complete the registration of ownership transfer of the land No. 2 of this case on May 17, 1947, and Nonparty 2 and the Plaintiff cultivated the entire land No. 2 of this case for a considerable period of time, and the Plaintiff paid all taxes, such as the aggregate land tax, etc. imposed on the land No. 2 of this case. The residents around the location where the land No. 2 of this case is located are aware of the ownership of the Plaintiff. Nonparty 1’s heir completed the registration of ownership transfer of the land No. 1 of this case on July 29, 194 on the ground of Nonparty 1’s death, but the registration of ownership transfer was not made on the ground of inheritance for Nonparty 1’s share in the land No. 2 of this case on July 20, 209.

However, in light of the following facts and circumstances acknowledged by each of the aforementioned evidence, i.e., ① there is no objective data such as a document supporting the Plaintiff’s assertion because the causes, timing, etc. of the transfer of land ownership indicated in the certified copy, etc. of the land registry of this case Nos. 1 and 2; ② If there was an exchange agreement as alleged by the Plaintiff, as to the land No. 1 in this case on November 25, 1980, around November 25, 1980, the Plaintiff did not take any measures even though Nonparty 1 should have completed the registration of transfer of ownership with respect to the land No. 2 in this case with respect to Nonparty 1’s share in the land No. 2 in the around 1968, it is difficult to acknowledge that the facts acknowledged earlier did not have an exchange agreement as alleged by the Plaintiff, and there is no other evidence to acknowledge

B) On the Plaintiff’s assertion

The Plaintiff and the Defendant shared the land No. 2 in their shares. Even if one co-owner occupies all of the co-owners, the co-owned real estate shall be deemed to be the owner of another co-owner's share within the limit of the ratio of shares of other co-owners in light of the nature of the title, barring any other special circumstances. The Plaintiff and the non-party 1 divided the land No. 2 into the upper and lower parts of the land, and even if they own the entire land after the registration of co-ownership for convenience, it shall be deemed to be the owner's share for the part corresponding to the part owned portion of the Defendant (see Supreme Court Decision 94Da19884, Jan. 12, 1995, etc.). Accordingly, the Plaintiff's above assertion is without merit without further review.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance, which has different conclusions, is unfair, and the plaintiff's claim is dismissed.

Judge Kang Young (Presiding Judge) (Presiding Judge)