In a case where the benefit of confirmation is recognized in the lawsuit for confirmation of land ownership against the State, and where part of the address is omitted from the indication of the owner on the land cadastre, whether there is a benefit in seeking confirmation of land ownership against the State by subrogationing the landowner for the application for registration of preservation of ownership (affirmative)

A claim for confirmation of land ownership against the State is unregistered and the land is not registered on the land cadastre or the forest land cadastre, or the identity of the registrant is unknown, and there are interests in confirmation only if there are special circumstances, such as denying the ownership of a third party who is the title holder of registration and continuing to exist. According to Article 87 Subparag. 4 of the Spatial Data Creation, Management, etc. Act, a creditor may subrogate an application to be made by a landowner who is a debtor in order to preserve his/her own claim, but may not file an application for the correction of registered matters in the cadastral record under Article 84 of the same Act on behalf of the State. If part of the registered address is omitted from the indication of the owner on the land cadastre, an application for registration of ownership preservation by the land cadastre cannot be filed, and the creditor of the landowner on the land cadastre cannot correct the registered matters on the land cadastre on behalf of the landowner. Thus, a creditor of the landowner on the land cadastre should be deemed as having interests in seeking confirmation of ownership against the State on behalf of the landowner for

Article 250 of the Civil Procedure Act, Article 130 of the Registration of Real Estate Act, Article 84 and Article 87 subparag. 4 of the Act on the Establishment, Management, etc. of Spatial Data

Supreme Court Decision 2009Da48633 Decided October 15, 2009 (Gong2009Ha, 1858)

Korea Rural Community Corporation

Korea

Daegu District Court Decision 2017Na314197 Decided May 17, 2018

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

The grounds of appeal are examined.

1. A claim for confirmation of land ownership against the State is not unregistered and the registrant is unknown on the land cadastre or the forestry register, and there is benefit in confirmation only when there are special circumstances, such as denying the ownership of a third party who is the titleholder of registration and continuing to claim ownership (see Supreme Court Decision 2009Da48633, Oct. 15, 2009). According to Article 87 Subparag. 4 of the Spatial Data Establishment, Management, etc. Act, a creditor may subrogate an application to be made by a landowner who is the debtor in order to preserve his/her own claim, but cannot file an application for correction of the registered matters in the cadastral record pursuant to Article 84 of the same Act on behalf of the State. It is difficult to apply for the preservation of ownership by subrogation of the State in order to seek confirmation of the ownership of the landowner in order to preserve his/her claim. In cases where part of the registered matters in the cadastral record is omitted on the land cadastre’s land cadastre’s land cadastre’s land cadastre’s land cadastre’s creditor cannot be corrected.

2. A. The lower court determined that the Plaintiff did not have any interest in seeking confirmation of ownership of the instant land against the Defendant, insofar as the instant land was in the state of unregistered registration and its land cadastre was indicated that Nonparty 1, who had an address in Daegu-gu ( Address omitted) and did not indicate Nonparty 1’s address and resident registration number, etc., but the Defendant recognized that the title holder of the instant land was Nonparty 1 (date of birth omitted) who was the title holder of the instant land, and his heir was Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7 (hereinafter “ Nonparty 1’s heir”) in the first instance trial co-defendant 2, Nonparty 3, Nonparty 5, Nonparty 6, and Nonparty 7 (hereinafter “the Plaintiff’s heir”).

B. However, the above determination by the court below is difficult to accept in the following respect.

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

A) On January 1, 1938, the coast repair cooperative, the Plaintiff’s telegraph, purchased the instant land from Nonparty 1 and occupied it as the coast irrigation site from that time.

B) In this case, the Plaintiff claimed confirmation that the instant land was owned by Nonparty 1’s heir, while Nonparty 1’s heir claimed implementation of the procedure for ownership transfer registration based on the completion of the statute of limitations for possession of the instant land. Nonparty 1’s heir became final and conclusive with respect to Nonparty 1’s heir.

C) In the old land cadastre of the instant land, Nonparty 1 stated the instant land as being evaluated, and the address is indicated as “salperic group (location omitted), but the parcel number is omitted.”

2) Examining the above facts in light of the legal principles as seen earlier, although the address of Nonparty 1, who is the name of the land cadastre, is partially indicated in the old land cadastre, it constitutes a case where the identity of the registrant is unknown because the lot number is omitted, and the Plaintiff cannot apply for correction of Nonparty 1’s address indicated in the land cadastre by subrogation of Nonparty 1’s heir. Therefore, it is reasonable to deem that the Plaintiff has a benefit to seek confirmation that the instant land was owned by Nonparty 1’s heir by subrogation of Nonparty 1.

C. Nevertheless, the lower court determined that the Plaintiff did not have a benefit to seek confirmation that the instant land was owned by Nonparty 1’s heir. In so doing, the lower court erred by misapprehending the legal doctrine on the interest in confirmation in the claim for confirmation for preservation of ownership of land, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)