Whether one of the co-owners of real estate is entitled to seek cancellation of registration of a part of the joint-owned property on the ground that the invalidation of the ground for infringing another co-owner's co-ownership, not his/her own share, was registered (negative)

If the plaintiff seeks to cancel the registration of the preservation of ownership completed in the name of the defendant against the defendant, he/she shall first assert and prove that the plaintiff has the title to request the cancellation thereof, and if it is not recognized that the plaintiff has such title, even if the registration of the preservation of ownership in the name of the defendant is invalid, he/she may not accept the plaintiff's claim. If the registration of the preservation of ownership has been completed in the name of the third party with respect to the pertinent real estate, one of the co-owners of the real estate may seek the cancellation of the whole registration against the third party as an act of preservation of the common property, but the co-owners may not claim the cancellation of the registration against the third party as an act of preservation of the common property, which is a factual and legal act of preventing the loss of or damage to the common property and maintaining the phenomenon of the common property. Thus, the co-owners cannot claim the cancellation of the registration with respect to the portion exceeding the limit of their share in the common property.

Articles 186 and 265 of the Civil Act, Article 288 of the Civil Procedure Act

Supreme Court Decision 92Da52870 Decided May 11, 1993 (Gong1993Ha, 1682) Supreme Court Decision 94Da3508 Decided November 11, 1994 (Gong1994Ha, 3272) Supreme Court Decision 98Da17831 Decided February 26, 199 (Gong199Sang, 607) Supreme Court Decision 2006Da72802 Decided February 26, 2009

[Judgment of the court below]

Defendant (Law Firm Digital Ballast, Attorneys Lee Hon-soo et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2009Na4570 Decided July 23, 2009

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

We examine the grounds of appeal.

If the plaintiff seeks to cancel the registration of initial ownership completed in the name of the defendant against the defendant, he/she shall first assert and prove that the plaintiff has the title to request the cancellation thereof. If it is not recognized that the plaintiff has such title, he/she may not accept the plaintiff's claim even if the registration of initial ownership preservation in the name of the defendant is invalid (see Supreme Court Decision 98Da17831, Feb. 26, 1999). One of co-owners of real estate can seek the cancellation of the entire registration against the third party as an act of preservation in the name of the third party (see Supreme Court Decision 92Da52870, May 11, 1993). However, in cases where the registration of initial ownership is completed in the name of the third party with respect to the real estate, the co-owner's claim for the cancellation of his/her share in the common property cannot be held as a factual and legal act of preventing the destruction or damage of another co-owner's ownership and maintaining the phenomenon of the common property.

The court below acknowledged the cancellation of the Plaintiff’s share transfer registration based on the Plaintiff’s title transfer registration based on the premise that the ownership transfer registration of the forest of this case was made based on the Plaintiff’s ownership transfer registration based on the premise that the ownership transfer registration of the forest of this case was cancelled based on the Plaintiff’s ownership transfer registration based on the premise that the Plaintiff’s ownership transfer registration of the forest of this case was no longer recognized based on the Plaintiff’s title transfer registration based on the premise that the ownership transfer registration of the forest of this case was made based on the Plaintiff’s ownership transfer registration based on the Plaintiff’s name and the Defendant’s punishment around June 19, 1979, upon purchasing the forest of this case from the Plaintiff and Nonparty 1 (hereinafter “the deceased”) with a guarantee certificate stating that the Plaintiff’s share was actually owned by donation on October 1, 1984, and that the ownership transfer registration of this case was cancelled based on the Plaintiff’s title transfer registration based on the premise that the ownership transfer registration of the forest of this case was cancelled based on the Plaintiff’s ownership transfer registration of this case.

However, according to the records, the plaintiff asserted that the plaintiff can seek cancellation of the ownership transfer registration of this case as an act of preservation based on his share of 1/3 as to the forest of this case. The plaintiff did not assert the title to the claim that the plaintiff acquired part of the shares of the deceased pursuant to Article 267 of the Civil Code because the deceased died without his heir. Further, each of the plaintiff's first instance court's preparatory documents dated December 10, 2008 and December 12, 2008, the plaintiff's mother's written statement (Evidence No. 11) submitted as evidence, and the plaintiff's request for the delivery of documents to the Hongdo Office of Daejeon as of December 12, 2008, the court below did not have any lineal blood relatives who were alive to the deceased, but did not have any lineal blood relatives who were children of the deceased, the deceased's deceased non-party 3, and the deceased's heir or collateral blood relatives at the time of his death (amended by Act No. 4190, Jan. 13, 1990). 8).

Thus, the plaintiff's act of preserving jointly-owned properties based on one-third portion of the forest of this case for which the claim was asserted from the beginning as the title of the claim, must be able to seek cancellation of the cause invalidation registration made with respect to the share of 1/3 of the deceased's ownership, but the claim can be accepted depending on whether the ownership transfer registration of this case is invalid based on a false guarantee. As seen earlier, the plaintiff cannot seek cancellation as an act of preserving jointly-owned properties on the ground that the invalidity of the cause of infringement of the deceased's co-ownership, other co-owners, who are not his own co-owners' shares, has been registered. Thus, the claim of this case cannot be accepted because there is no proof

Nevertheless, the court below erred by misapprehending the legal principles as to the act of preserving jointly-owned property, thereby adversely affecting the conclusion of the judgment, where the judgment of the court below on the title of the claim of this case was based on a false certificate of guarantee and the plaintiff's claim was accepted to determine whether the cause of the transfer of ownership

The ground of appeal pointing this out is with merit.

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 Yang Chang-soo (Presiding Justice)