Whether it can be deemed that the land owned by a clan in relation to the specific cemetery solely on the basis of the fact that the land is a monument of a specific grave.

Although a clan related to a specific tomb is also established by acquiring the ownership of the land, it may be possible for descendants to set up the land as the soil of a specific tomb. As such, the fact that the land is the soil of a specific tomb does not constitute the land owned by a clan, solely on the basis of the fact that it is the soil of a tomb.

Article 187 of the Civil Procedure Act [Notarial Deed], Article 103 of the Civil Act / [title trust]

Supreme Court Decision 83Do1726 Decided March 13, 1984 (Gong1984, 663) Supreme Court Decision 85Meu847 Decided November 26, 1985 (Gong1986, 118), Supreme Court Decision 91Da14062 Decided September 13, 1991 (Gong191, 2531)

Magim Magyeong-Jak, Magyeong-gu, Magyeong-Jak

Defendant 1 and four others (Attorney Kim Si-hwan, Counsel for the defendant-appellant)

Daejeon District Court Decision 94Na1799 delivered on April 19, 1995

The part of the judgment below against the Defendants is reversed and the case is remanded to the Daejeon District Court Panel Division.

(b) the case is remanded.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. According to the reasoning of the judgment below, the court below acknowledged the fact that 2,397 square meters prior to 0,00,000 square meters (number 1 omitted) were trusted to the deceased non-party 1 as the land owned by the deceased non-party 1 in his name on January 28, 1913, and thereafter, the registration of preservation of ownership in the name of the deceased non-party 2 and the registration of transfer of ownership has been made in the name of the Defendants. Since the presumption of registration of preservation of ownership of real estate was broken if the real estate is different from the name of the title holder of the preservation registration, the registration of preservation of ownership in the name of the deceased non-party 2, on the premise that the registration of preservation of ownership in the name of the title holder of the real estate is null and void, the above registration of preservation of ownership in the name of the deceased non-party 1, the heir of the deceased non-party

B. However, the court below's decision that recognized that the plaintiff clan was a title trust to the above deceased non-party 1 is difficult to understand in light of the following points.

(1) Examining the evidence employed by the court below in its finding the above facts in the order, first of all, Gap evidence No. 19-1 through No. 4 among them is about 0, 23, and Gap evidence No. 25-1 through No. 25 as evidence to support the title trust relation of the land of this case as a certified copy of each family register, a certified copy of each family register, and a certified copy of the title trust relation of the land of this case.

(2) Next, the testimony of the non-party 3 of the first instance witness is known to the fact that the land of this case was owned by the plaintiff clan, and the fact that the non-party 1 was trusted to the clan in the name of the deceased non-party 1 should not be seen as the copy of the register. The testimony of the non-party 4 of the first instance trial witness is that the land of this case was left to the plaintiff clan, and the non-party 1 was transferred to the deceased non-party 1, the witness's division and the mediation division were followed. The testimony of the non-party 5 of the first instance trial witness was made from the plaintiff clan since it was known that the land of this case was managed by the plaintiff clan since 10 years before it was administered by the plaintiff clan, and the summary of the testimony of the above witness who is the members of the plaintiff clan was eventually the fact that the land of this case was trusted to the deceased non-party 1 as the part of the plaintiff clan's clan, and it was difficult to know when the plaintiff acquired the title trust or the title trust was acquired.

(3) In addition, the non-party 6 of the first instance trial has cultivated the land of this case from 50 years before the non-party 7's denial, and in return, the plaintiff 7 cultivated the land of this case to the present time, but after the death of the non-party 7, the plaintiff clan stated that the non-party 7 was holding the title trust of the land of this case to the non-party 1, and that the non-party 7, who was delegated the management of the above non-party 7, was the owner of the non-party 1's clan. While the non-party 6 acquired the ownership of the land of this case and established the land of this case to the non-party 7's own for the above purpose, the non-party 5's testimony cannot be viewed as the land owned by the non-party 1 of this case's clan because the non-party 5's testimony, such as the non-party 1, the non-party 1, who was the non-party 1 of this case's farmland.

(4) Next, in the testimony on the second day for pleading of the court below, the non-party 8 of the court below knew that the land of this case was cultivated by the deceased non-party 7 and the non-party 6 by the entrustment of the plaintiff clan from the time of the second day for pleading of the court below, and stated that the plaintiff's clan prepared the idea and the memorials in the tomb of the plaintiff clan as a result of the development of the above land, and it was annually viewed that the plaintiff's clan was spawn. On the fifth day for pleading of the court below, the non-party 8 of the court below knew that the land of this case was cultivated by the deceased non-party 7 of the plaintiff clan, but it is not known that the other owner was in charge of the cultivation of the land of this case, and the ground that the plaintiff's plaintiff 6 was spawn with the land of this case as the soil of the plaintiff clan of this case, and it is difficult to conclude that the land of this case was owned by the plaintiff non-party 6 of the above clan.

(5) Lastly, Gap No. 20 (C. 20) is a private document that confirms that the land of this case is the consolation of the plaintiff's clan by the non-party 9, the non-party 8, and the non-party 10 of the ○○○ Dong farmland chairperson, the farmland member, the non-party 8, and the non-party 10 in public administration, and it is difficult for the above reporters to believe that the land of this case is owned by the plaintiff's clans in light

(6) In addition, according to the testimony of Non-party 11 of the witness of the first instance court who did not reject the judgment of the court below, the non-party 12 sold the land of this case only with the permission of the defendant 1 around 1986, and the remaining Defendants, co-owners, filed a lawsuit seeking confirmation of invalidity of the contract and filed criminal complaint, but the land of this case was not owned by the plaintiff clan. The non-party 12 did not argue that the land of this case was owned by the plaintiff clan, and the non-party 2 was paid taxes imposed on the land of this case after the witness's gathering. Further, according to the non-party 11's testimony, it is hard to conclude that the land of this case was owned by the plaintiff's clan 13,48 square meters in the name of the defendant clan 1, the plaintiff's name was registered in the plaintiff clan 1's name and it is hard to conclude that the land of this case was registered in the plaintiff's name of the plaintiff clan 1's forest register.

C. Nevertheless, the court below's finding that the plaintiff clan held the title trust to the deceased non-party 1 of the land of this case owned by the plaintiff clan only by its evidence was erroneous in the misapprehension of facts against the rules of evidence, and it is clear that this affected the judgment. Therefore, the ground for appeal pointing this out has merit.

2. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Defendants among the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating

Justices Lee Jae-soo (Presiding Justice)