[1] Where the form of alteration of a lawsuit is unclear, the fact-finding court's duty of explanation

[2] Court's explanation and cadastral duty as to legal matters

[3] Whether a person who did not have a registration indicating ownership in his/her future and who did not acquire ownership under the law can file a claim for registration of ownership transfer against the present registered titleholder by subrogation of the owner for the restoration of the real name (negative)

[4] The case reversing the judgment of the court below on the ground that there was an error of law by failing to exercise the right of illumination properly and thereby giving the parties an opportunity to legally correct their claims and arguments

[1] Article 126(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the presiding judge may ask the parties questions or urge them to prove the factual and legal matters in order to clarify the litigation relations. In case where the form of change is obscure due to a change in a new claim without a clear declaration of intent that the parties withdraw the former claim, the court of fact is obligated to clarify the purpose of changing the claim, that is, exchange or additional authorization.

[2] Article 126(4) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) provides that the court shall give the parties an opportunity to state their opinions with respect to the legal matters that are deemed clearly excessive between the parties. Thus, in a case where the parties have any legal matters that are clearly unreasonable due to negligence or misunderstanding, or where the allegations of the parties are inconsistent or obscure from a legal point of view, the court shall actively exercise the right to state their opinions and give the parties an opportunity to state their opinions, and in a case where the parties have neglected to state their opinions, the court is unlawful.

[3] A claim for the registration of ownership transfer for the restoration of a true title of registration is allowed in lieu of seeking the cancellation of the registration against the current title holder in a way that the ownership was already registered to indicate the ownership in his/her future, or that the person who acquired ownership pursuant to the law seeks the cancellation of the registration in his/her way to restore the true title of registration. In cases where a person who did not have the ownership in his/her future and who did not obtain the ownership pursuant to the law is entitled to file a claim for the cancellation of the registration in subrogation of the current title holder, he/she may not file a claim against the current

[4] Where a new claim is filed for the implementation of the procedure for the registration of ownership transfer for the restoration of real name without maintaining the previous argument that the plaintiff who won the first instance court in the lawsuit for the registration of cancellation of registration of ownership preservation was not registered in his own future at the appellate court, which was the original court, and did not acquire ownership by law, the case reversing the judgment of the court below on the ground that the court below erred in failing to take such measures despite the fact that the court below pointed out the legal inconsistency between the plaintiff's application for modification of registration and provided the plaintiff with an opportunity to state his opinion, thereby giving the plaintiff an opportunity

[1] Articles 126 (see current Article 136) and 235 (see current Article 262) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Article 126 (4) (see current Article 136 (4)) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [3] Article 186 of the Civil Act / [4] Article 126 (4) (see current Article 136 (4)) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002)

[1] Supreme Court Decision 86Meu2600 Decided June 9, 1987 (Gong1987, 1139) Supreme Court Decision 94Da10153 Decided October 14, 1994 (Gong1994Ha, 2973), Supreme Court Decision 94Da6802 Decided May 12, 1995 (Gong195Sang, 2097), / [2] Supreme Court Decision 2001Da11055 Decided January 25, 2002 (Gong2002Da4098, 40104/3/3] Supreme Court en banc Decision 2002Da209489 decided Oct. 11, 202 (Gong2002Da40104 decided Oct. 29, 2014)

○○○ ○○ ○○mm ○○○○ Association (Attorney Park Im-soo, Counsel for the defendant-appellant)

Defendant 1 and one other

Gwangju High Court Decision 2001Na9686 delivered on June 21, 2002

The judgment below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the grounds of appeal filed after the deadline).

1. The record reveals the following facts.

A. In the first instance trial, the Plaintiff, as the ownership of the Plaintiff’s clan, had the instant real estate registered as three co-ownership in the old land (forest) register under the circumstances of Nonparty 1, Nonparty 2, and Nonparty 3, not the clan members. On June 26, 1995, the Defendants asserted that the registration of ownership preservation was completed in the name of the Defendants pursuant to Article 4502 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 4502, Nov. 30, 1992), on behalf of the title trustee, for the cancellation of the registration of ownership preservation under the Defendants’ name.

B. The Plaintiff, the appellate court, maintained the aforementioned argument at the lower court, filed an application for modification of the lawsuit with the purport of seeking to implement the procedure for ownership transfer registration due to the restoration of the real name of the pertinent real estate against the Defendants on the first day of pleading, and stated in the lower court on the first day of pleading.

2. The court below held that the plaintiff requested for the performance of the procedure for cancellation of the registration of title transfer for the restoration of real name is changed to an exchange with the request for the performance of the procedure for cancellation of the registration of title transfer for the restoration of real name, and held only that the claim for the performance of the procedure for the registration of ownership transfer for the restoration of real name is made under its own name, or that the real owner who acquired ownership under the law was entitled to obtain the implementation of the procedure for the registration of ownership transfer for the restoration of real name for the restoration of real name. On the other hand, it is possible for the trustee to seek the exclusion of infringement on the title trust property because the trustee is the owner externally in the title trust, and the truster can seek the exclusion of such infringement on behalf of the external owner. Thus, even if the title trust is recognized, the truster cannot be deemed to be in the status of the real owner who can make the request for the registration of ownership transfer for the restoration of real name due to the restoration of the real name in the title trust (see Supreme Court Decision 200Da3684, Aug. 21, 201).

3. However, we cannot agree with the judgment of the court below for the following reasons.

A. Article 126(1) of the former Civil Procedure Act (amended by Act No. 6626, Jan. 26, 2002; hereinafter the same applies) provides that the presiding judge may inquire or urge the parties to prove the factual and legal matters in order to clarify the litigation relationship. Where the form of change is obscure due to a change in a new claim without an obvious declaration of intent to withdraw the previous claim, the court of fact-finding has a duty to clarify what is the purpose of the change in the claim, namely, exchange or additional authorization (see Supreme Court Decisions 86Da2600, Oct. 14, 1994; 94Da10153, Oct. 14, 1994; 94Da6802, May 12, 1995). However, according to the records, the court below's decision should be held to seek the change in the title of the plaintiff's right to request the cancellation of the existing claim in the appellate court by exercising the right to request the cancellation of the ownership registration procedure.

B. In addition, Article 126(4) of the former Civil Procedure Act provides that the court shall give the parties an opportunity to state their opinions with respect to legal matters that are deemed clearly excessive between the parties. Thus, in a case where there is a matter of law that is clearly unreasonable due to negligence or misunderstanding of the parties' allegations, or contradictory or unclear from a legal point of view, the court shall actively exercise the right to state their opinions, and in a case where the parties neglected to state their opinions, the court shall give the parties an opportunity to state their opinions, and in a case where the parties neglected to state their opinions, it shall be deemed unlawful (see Supreme Court Decisions 2001Da11055, Jan. 25, 2002; 2002Da4098, 40104, Oct. 11, 2002).

According to the above facts, the plaintiff asserted that the real estate of this case was nominally trusted to three persons, including a clan, and was under the name of the clan, and won in the first instance trial by claiming the procedure for registration of cancellation of the registration of ownership preservation in the name of the defendants in subrogation of the title trustee, but the court below, which was the appellate court, maintained the above claim through the application for modification of the lawsuit, and requested the implementation of the procedure for registration of ownership transfer

However, a claim for the registration of ownership transfer for the restoration of real name is allowed in lieu of seeking the cancellation of the registration against the present registered titleholder by a person who has already registered ownership in his/her future or who has acquired ownership pursuant to Acts and subordinate statutes, as a means to restore the real name of the registration. Thus, in cases where a person who did not have registered ownership in his/her future and who did not have acquired ownership pursuant to Acts and subordinate statutes is entitled to file a claim for the cancellation of the registration against the present registered titleholder by subrogation of the ownership holder, it is too obvious by a repeated case that the current registered titleholder cannot file a claim for the registration of ownership transfer for the restoration of the real name of the registered titleholder. Therefore, the plaintiff's claim for the cancellation of the registration of ownership transfer in his/her name by subrogation of the defendant, asserting that he/she had been under a title trust with a third party, such as a clan, but the appellate court did not have registered the ownership in his/her future and did not acquire ownership pursuant to Acts and subordinate statutes, it seems to be contradictory to the plaintiff's claim for the implementation of the ownership transfer registration in his/her own name.

Considering the circumstances that, in the event that a lawsuit is exchanged in an appellate trial, the court below should have given the opportunity to legally correct the claim and claim and to legally correct the dispute by pointed out that there is a legal inconsistency with the Plaintiff’s application for modification and granting the Plaintiff an opportunity to state his/her opinion.

C. Nevertheless, the lower court, without taking such measures, concluded that the purpose of changing the Plaintiff’s claim is an exchange change, and dismissed the Plaintiff’s claim based only on the determination of the new claim. Therefore, the lower court erred by misapprehending the legal doctrine on changing the claim or by failing to exhaust all necessary deliberations by neglecting the duty of explanation. The allegation in the grounds of appeal assigning this error is with merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)