[1] The elements for recognizing the prescriptive acquisition of part of one parcel of land

[2] The extent that other co-owners can seek implementation of the procedure for registration of cancellation against co-owners, who are co-owners of the registered titleholder (=the co-ownership of the registered titleholder except the co-ownership of the co-ownership of the registered titleholder)

[1] Article 245 of the Civil Code / [2] Articles 214 and 265 of the Civil Code

[1] Supreme Court Decision 88Meu94 delivered on April 25, 1989 (Gong1989, 814), Supreme Court Decision 96Da37428 delivered on March 11, 1997 (Gong1997Sang, 1054) / [2] Supreme Court Decision 87Da961 delivered on February 23, 198 (Gong198, 580), Supreme Court Decision 2006Da32200 delivered on August 24, 2006

Plaintiff (Law Firm Sejong, Attorneys Jeon Jeon-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Soh-ho, Counsel for defendant-appellant)

Daegu District Court Decision 2010Na24723 Decided December 2, 2011

The part of the lower judgment against the Defendant regarding the ancillary claim is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

In order to recognize the prescriptive acquisition of part of one parcel of land, it is required that there is an objective requisition sufficient to recognize that the part belongs to the possession of the acquisitor by prescription because it is separated from other parts (see, e.g., Supreme Court Decisions 88Meu94, Apr. 25, 1989; 96Da37428, Mar. 11, 197).

Examining the reasoning and record of the lower judgment in light of the aforementioned legal doctrine, the lower court is justifiable in rejecting each of the primary claim for the acquisition of prescription in the entire part of the instant forest as part of the instant forest, and the conjunctive claim for the acquisition of ownership of 1/4 out of the dispute part of the instant forest, based on its stated reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on possession of forest land, or by failing to exhaust all necessary deliberations or by failing to state the reasons.

2. As to the Defendant’s ground of appeal

One of the co-owners of the real estate shall be entitled to seek the cancellation of all of the registration in relation to the joint-owned property if the ownership invalidation registration for the cause has been made in the name of a third party with respect to the pertinent real estate. However, if the third party is one of the co-owners of the pertinent real estate, the transfer registration for ownership transfer shall be in accordance with the substantive relationship with regard to the co-ownership of the said person. In such a case, the one of the co-owners may seek the implementation of the procedure for the cancellation registration for ownership transfer registration only for all of the co-ownership except for the co-ownership of the co-owner's share (see Supreme Court Decisions 87Meu961, Feb. 23, 198; 2006Da32200, Aug. 24, 2006).

According to the reasoning of the judgment below and the records, the non-party 1, the non-party 2, the non-party 3, and the non-party 4 held the share 2/5 of the forest land before the division of this case. Among them, the non-party 1 and the non-party 2 had a specific part of the forest land divided according to the division agreement, and thus their sharing relationship was terminated. The non-party 3 and the non-party 4 had a common relationship with respect to the forest land of this case. However, with respect to the non-party 1, the non-party 2, the non-party 2's heir, the non-party 3/4 share on the register of the non-party 1, the non-party 2, and the non-party 3, the non-party 6, who succeeded to the non-party 4's share on the forest of this case, had a share transfer registration again made on the share transfer registration over the forest of this case, and the plaintiff, on the other hand, donated the share of the forest of this case from the non-party 3.

In light of the above facts in light of the legal principles as seen earlier, the forest of this case is owned by the defendant who received the registration of ownership transfer from the non-party 4's inheritor 6 and the plaintiff's co-ownership with respect to the forest of this case, and since the forest of this case was transferred under the defendant's sole name because the registration of ownership transfer with respect to the 3/4 share out of the forest of this case was based on the registration of ownership transfer with respect to the 3/4 share of the forest of this case, the plaintiff as co-owner can seek the cancellation of the remaining co-ownership shares except the defendant's co-ownership with respect to the registration of ownership transfer

Therefore, the lower court should have determined the division and ownership relationship of the forest before the instant partition, and examined and finalized the actual co-ownership share of the Plaintiff and the Defendant, which remains in the forest of this case. After examining whether the registration of invalidation of the cause exists in the dispute over the forest of this case sought by the Plaintiff as to whether the share of the Defendant was included in 3/4 shares, and if the Defendant’s co-ownership was included, the lower court should have ordered the cancellation only for

Nevertheless, the lower court ordered the Defendant to cancel the ownership transfer registration of this case as to the entire share of 3/4 of the part in the dispute over the forest of this case solely on the ground that the act of preserving common property constitutes the act of preserving common property without deliberation as to this part. In so doing, the lower court erred by misapprehending the legal doctrine as to co-owner’s share and the act of preserving common property, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the part of the conjunctive claim by the lower court against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Poe-young (Presiding Justice)