Plaintiff 1 and 3 others (Law Firm Law Firm, Attorneys Ba-ho et al., Counsel for the plaintiff-appellant)

Korea

November 2, 2012

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay to the plaintiff 1 485,925,00 won, 88,350,000 won, and 68,716,666 won to the plaintiff 3, and 19,63,3333, and 333 won and each of the above money to the plaintiff 4 from May 11, 2012 until the delivery date of a copy of the application for change of the purport of the claim and the cause of the claim in this case, 5% per annum, and 20% per annum from the next day to the day of full payment.

1. Basic facts

A. The deceased non-party (foreign person, address, and family head of Suwon-gun: Suwon-gun 1) was assessed against the Dongwon-gun of Gyeonggi-do ( Address 1 omitted) (hereinafter “the land before the instant subdivision”) about the 1304 square meters prior to the instant subdivision.

B. The process of altering the land before the instant partition is as follows.

The name of the administrative district was changed on April 20, 1995 and November 24, 2009 on the change of the land category and land category included in the main sentence on September 1, 1992, and the change of the name of the administrative district. The name of the administrative district was changed on February 16, 2009, and the name was changed on February 16, 2009, and the name was 850 square meters ( Address 3 omitted) road of 1304 square meters ( Address 3 omitted) prior to the change of the name of the administrative district was changed on February 16, 2009, and the land was 397 square meters ( Address 3 omitted) road of 112 square meters in Suwon-si ( Address 8 omitted) road of 112 square meters in Suwon-si ( Address 8 omitted) and the land was omitted, and the land was 285 square meters in the previous 285 square meters (number 285 square meters in the previous 2842.

C. As to the instant land, the Defendant Republic of Korea received the Suwon District Court’s Dongwon District Court’s registration office on May 25, 1988, and the registration of ownership transfer and the registration of ownership transfer as the receipt of No. 52695 on Nov. 7, 1994 by the same registry office, and the Nonparty Samsung Electronic Co., Ltd. (hereinafter “Tsung Electronic Co., Ltd”) completed the registration of ownership transfer and the registration of ownership transfer as the receipt of No. 5998 on Jan. 21, 2008 by the same registry office.

D. The deceased Non-Party died on December 29, 1934. As to the land of this case, Plaintiff 1 and Plaintiff 1 were jointly inherited at the rate of 9/135, Plaintiff 2, Plaintiff 18/135, Plaintiff 3 were 14/135, and Plaintiff 4 jointly inherited the deceased at the rate of 4/135.

E. The Plaintiffs filed a lawsuit against the Defendant, Samsung C., and Samsung C., seeking the registration of preservation and the cancellation of each transfer registration of ownership on the instant land (hereinafter “instant prior lawsuit”), and the Plaintiff’s claim for cancellation of registration of preservation of ownership against the Defendant was accepted, but Samsung C., on November 7, 2004, the Plaintiff lawfully acquired ownership on the ground of the completion of the prescription period for the acquisition of the registration of the instant land, and Samsung C., on the ground that Samsung C. had lawfully acquired ownership on the ground that the ownership was legally transferred from the Plaintiff, both of which were dismissed (Seoul Central District Court Decision 2011Ga39286, Apr. 18, 2012), and the above judgment became final and conclusive on May 11, 2012.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. The plaintiffs' assertion and judgment

A. The plaintiffs' assertion

The plaintiffs are the successors of the deceased non-party who acquired the land at the original time upon the assessment of the land before the division of this case. The defendant, without any authority, completed the preservation registration of the land of this case and transferred ownership to Samsung SDR. The plaintiffs lost their ownership in the previous lawsuit of this case by recognizing Samsung SDR's defense on the acquisition of Samsung SDR's land. As such, the defendant is liable to compensate for damages suffered by the plaintiffs due to such tort (the amount equivalent to the plaintiffs' share in inheritance for the 662,625,000 won at the market price at the time of the confirmation of the previous lawsuit of this case and damages

B. Determination

The facts that the deceased non-party, who was the deceased, was assessed against the land before the division of this case, were dismissed on the ground that the plaintiffs' claim for cancellation of the ownership transfer registration filed against Samsung SDR, was completed by the completion of the prescription period for the acquisition of the register by Samsung SDR, and the aforementioned judgment became final and conclusive on May 11, 2012, as seen earlier.

However, in accordance with the legal principles as to liability for nonperformance, liability for compensatory damages due to nonperformance of obligation is 2 weeks where the obligor bears the burden of proof as to the absence of cause attributable to the obligor. However, in principle, the obligee bears the burden of proof as to the requisite facts. Therefore, in order to recognize the Plaintiffs’ claim for damages due to tort against the Defendant, the Plaintiffs are liable to prove the cause and illegality of the Defendant (see Supreme Court en banc Decision 2010Da28604, May 17, 2012). In light of the above legal principles, it is sufficient to see only the fact that the ownership is preserved true (see Supreme Court Decision 2007Da46138, Oct. 25, 2007). Since the deceased Nonparty is the situation of the land before the division of this case, the presumption of preservation of ownership of the Defendant’s name as to the land of this case has become extinct, and there is no evidence to acknowledge otherwise as to the fact that the Defendant is not the purchaser of the land of this case.

Therefore, without any need to further examine the remainder of the claim of this case filed by the plaintiffs for damages caused by illegal acts on the premise that the defendant's illegal act was committed.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.

Judges Lee Chang-tae (Presiding Judge)

1) Since then, the administrative districts were integrated on the surface of the head.

2) However, as seen earlier, the Plaintiffs lost ownership of the instant land due to the recognition of the completion of the prescriptive acquisition by Samsung Esteia in the instant lawsuit, and as such, the Plaintiffs cannot claim damages therefrom on the ground that the Defendant’s obligation to perform the registration procedure was impossible (see Supreme Court en banc Decision 2010Da28604, May 17, 2012).

3) Although the plaintiffs' claim for cancellation of ownership preservation against the defendant was accepted and confirmed in the preceding lawsuit of this case, the subject matter of the lawsuit of this case is the right to claim cancellation of ownership preservation as a real right based on ownership, and thus, the res judicata effect of the above prior lawsuit does not affect this case.