2015Da1468 Registration of cancellation of ownership

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

GJents Association

Suwon District Court Decision 2014Na18923 Decided November 13, 2014

May 28, 2015

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Registration completed under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 4502, Nov. 30, 1992; hereinafter referred to as the "Special Measures Act") is presumed to be a motive consistent with the substantive legal relationship. The presumption of registration of ownership preservation or registration of transfer is not broken unless a letter of guarantee or confirmation under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate is proved to be false or forged, or not legally registered due to other reasons. The false letter of guarantee or confirmation here refers to a letter of guarantee or confirmation which does not fit the truth. Considering that the Act on Special Measures for the Registration, etc. of Ownership of Real Estate permits registration that is inconsistent with the process of change in rights against the actual transferee of real estate, even if the entry of the date of purchase in the name of the seller in the letter of guarantee or confirmation is different from the actual transferee, or the specific reason for change in rights is omitted and only the current status of rights is stated, such presumption of legal effect can not immediately be broken (see Supreme Court Decision 2007Da7375, Jul. 27, 20007.

In addition, the fact that a guarantor under the Act on Special Measures provides a guarantee for the guarantee of the change of rights, which is claimed by a registered titleholder without knowing the change of rights, cannot be said to be broken up with the presumption of registration (see Supreme Court Decision 2005Da2189, Apr. 29, 2005).

In addition, when a person who has completed a registration under the Act on Special Measures claims that he/she acquired a right in accordance with another cause of acquisition even if he/she recognizes the fact that the cause of acquisition stated in the letter of guarantee or written confirmation is different from the fact, he/she shall be subject to the Act on Special Measures,

As can be seen, barring special circumstances, such as where it is apparent that the assertion itself is unable to complete the registration under the Act on Special Measures, or where the assertion itself is in fact a dead-end, it cannot be deemed that the presumption of the completed registration under the Act on Special Measures is broken solely for the above reasons, barring any special circumstances such as where the assertion is a dead-end, and the presumption of the registration should be broken to the extent that it is proven to be true for the facts that are newly asserted by other data (see Supreme Court en banc Decision 2000Da71388, 71395, Nov. 22, 2001).

2. We examine the reasoning of the judgment below that the presumption of registration is reversed.

On December 29, 1970, the court below acknowledged the facts as stated in its reasoning, such as the fact that the registration of ownership transfer was completed by 1/2 shares in each of the instant clans under the name of J and K, and that each of the instant clans was completed on January 14, 1995 under the Act on Special Measures for the Ownership Transfer on April 5, 1980. Furthermore, according to the Special Measures for the Ownership Transfer Registration, the court below determined that the Defendant was the guarantor of each of the instant clans under the name of each of the instant clans under the name of each of the instant clans and the Defendant’s representative was unable to memory, and that J did not have donated his shares to the Defendant on April 5, 1980, because the Z clans were attached to the minutes of each of the instant clans, and that it appears to have obtained the ownership transfer registration of each of the instant clans under the name of each of the instant clans under the name of Defendant J and the Defendant’s respective of each of the instant forest shares.

3. Examining the records in accordance with the above legal principles, we cannot accept the judgment of the court below.

(1) According to the records, the guarantor, at the same time on April 1980 and around 1980, he testified that he was aware that the forest of this case was UC, and that UC descendants collected and left UC species each year, and that he donated his shares in each of the forest of this case to the defendant around April 5, 1980. However, although the J was unaware of the fact that the Z clan resolution, which states that ownership of each of the forest of this case is transferred to the clan, has been prepared, it cannot be readily concluded that the above testimony was made by the court below because he did not know that J donated his shares in each of the forest of this case to the defendant. However, considering the activities and contents of the clan resolution centering on each of the forest of this case, it cannot be readily concluded that the above testimony was made by the owner of each of the forest of this case, prior to the completion of the guarantee certificate.

(2) According to the records, the defendant's assertion that "K donated the forest of this case to K when it registers the forest of this case from J as a clan, and that the procedure for the registration would be simple and saved when it registers the forest of this case by using the Act on Special Measures.As of February 7, 1987, K would die, and K would explain all the circumstances to the plaintiffs, who are the heir of J, and obtain his consent, that "the registration of transfer of each of the forest of this case was completed in the name of the defendant in the form of donation of each of the forest of this case to the defendant for the defendant clan." This argument by the defendant is that the defendant received 1/2 shares of J in each of the forest of this case according to the intention of J, and therefore, it cannot be viewed as the defendant's assertion that he received the above shares without being based on

Even if the Defendant appears to have given the Defendant a donation of the entire ownership of each forest of this case, including 1/2 shares in the forest of this case, as the grounds for acquiring each of the forest of this case, K does not directly contribute to the Defendant, but it can be deemed that K recognized the grounds for acquiring rights in the letter of guarantee or written confirmation, but it does not constitute a case where it is evident that a registration in accordance with the Act on Special Measures for Acquisition of the Forest of this case cannot be omitted in the state itself or its assertion is nothing more than 5, and it cannot be deemed that the acquisition of each of the forest of this case itself is a mere fact that there is no physical constitution or its assertion. In such a case, the presumption that each of the grounds for acquiring the forest of this case newly asserted by the Defendant should be proven to be true, but it cannot be deemed that the establishment of a clan of this case and its registration has broken by deeming the period as false based on such Defendant’s argument to have been formed with the name of the clan of this case or the number of the deceased members of the clan of this case for the purpose of the deceased and the clan of this case.

According to the records, K moved the grave of a line of not more than 7 years old, which is scattered in the Gangseo-gu Seoul Metropolitan Government V, W, X, Kimpo, etc., into the land located in AB in the 1970s, and the above AB land was incorporated into the urban planning area, and around April 1980, K moved the above grave into the forest of this case. The descendants thereafter moved the grave into the forest of this case and manage each of the above graves every year from the forests and fields of the Warsaw. Such factual relations are in accordance with the legal principles as seen earlier.

In light of the above, although the defendant clan was named as S'G clan's 28 years of age, but in substance, the defendant clan was a joint ancestor of S's 22 years of age, and as a clan consisting of descendants, it is naturally formed in order to promote the religious rites, the protection of graves, the management of tombstones, and the friendship of clans, and it is deemed that K had already been dissolved from the time when K was convenient to preserve the tombstones of 22 years of age T (hereinafter referred to as "S).

(4) Ultimately, since it cannot be said that the substantial contents of the guarantee certificate, which served as the basis for the registration of transfer of ownership in the instant case, are proven to be not true, it is difficult to reverse the presumption power of each transfer of ownership in the Defendant’s name.

Nevertheless, the lower court, solely based on its stated reasoning, deemed that the presumption power of each of the instant transfer registrations in the name of the Defendant was reversed, and determined that the registration of invalidity, which was completed without any cause, was the 1/2 shares of J among each of the instant transfer registrations.

In so determining, the lower court erred by failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

4. 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 Park Sang-hoon

Justices Kim Jae-tae

Chief Justice Cho Jae-dae

Justices Park Sang-ok