In cases where the registration of land is made and the entry of the holder of a title on the registry does not coincide with the actual but the identity of the person is recognized, whether the registration of change of the name holder is possible (affirmative), and whether there is a benefit to seek confirmation against the State on the actual ownership (negative)

If a claim for confirmation of land ownership against the State is unregistered and there is no registered titleholder in the land cadastre or forest land cadastre, or the identity of the registered titleholder is unknown, there is a benefit in confirmation only in extenuating circumstances, such as the State's denial of ownership by a third party and continuing to claim ownership by the State, if the presumption of right is not recognized in the entry of the owner of land cadastre or forest land cadastre for unregistered land or forest land cadastre.

On the other hand, where there are errors or omissions in the name, address, resident registration number, etc. of the registered titleholder stated in the register, it means correcting the identity of the person entered in the register without changing the identity of the person entered in the register.

Therefore, where the registration is made on the land, if the identity of the character is recognized even though the entry of the holder of the title on the register does not coincide with the actual, the indication of the holder of the title can be registered, and there is no benefit to seek confirmation against the State.

Article 250 of the Civil Procedure Act; Article 186 of the Civil Act; Article 23(6) of the Registration of Real Estate Act; Article 48(1)5 and (2) of the Registration of Real Estate Act

Supreme Court Decision 94Da36360 Decided June 13, 1995 (Gong1995Ha, 2389) Supreme Court Decision 95Da33214 Decided April 12, 1996 (Gong1996Sang, 1506) Supreme Court Decision 2010Da4594 Decided November 11, 2010 (Gong2010Ha, 2252)

Plaintiff

Korea

Daegu District Court Decision 2015Na300385 Decided July 23, 2015

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

The grounds of appeal are examined.

1. Where a claim for confirmation of ownership of land against the State is unregistered and its registrant is unknown in the land cadastre or forest land cadastre or forest land cadastre, where the presumption of right is not recognized in the entry as to the owner of the land cadastre or forest land cadastre for unregistered land or forest land cadastre, and where there are special circumstances, such as the State’s refusal of ownership by a third party registered and the State continues to claim ownership (see, e.g., Supreme Court Decision 2010Da45944, Nov. 11, 2010).

On the other hand, where there are errors or omissions in the name, address, resident registration number, etc. of the registered titleholder stated in the register, the correction is made without changing the identity of the person entered in the registration titleholder (see Supreme Court Decision 95Da3214, Apr. 12, 1996).

Therefore, in cases where a registration is made on land, if the identity of the person in whose name is recorded on the register is recognized even if the identity of the person in whose name is recorded on the register is recognized, it is possible to register the change of the name of the person in whose name the registration is made (see Supreme Court Decision 94Da36360, Jun. 13, 1995). There is no benefit

2. According to the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted, the following facts are revealed.

A. On June 13, 1970, pursuant to the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Forest Land (amended by Act No. 2204 of Jun. 18, 1970), the Plaintiff completed the registration of ownership transfer in the future of the Plaintiff on July 3, 1968 with respect to shares of 15/1,324 (hereinafter “instant forest shares”) out of 57,172 square meters of forest land ( Address 1 omitted) in Gyeongbuk-gun (hereinafter “instant forest land”).

B. The Plaintiff’s Chinese name and resident registration number are “○○○, 58127-127-1*****,” and the permanent domicile is “Seoul-gun ( Address 2 omitted)”.

C. However, in the register of the forest land of this case, the address of the owner of the forest land of this case is recorded as the legal domicile of the Plaintiff, while the name is recorded as “△△△△” differently from the actual domicile of the Plaintiff.

In addition, the co-ownership delay list attached to the forest land register of this case also includes the address of the owner of the forest land of this case as the legal domicile of the plaintiff, while the name and resident registration number of this case are erroneously stated as " △△, 190205-1****."

3. As to such factual relations, the lower court, on the grounds the grounds indicated in its reasoning, recognized that: (a) there is no person who is indicated in the forest land register as a titleholder for the instant forest portion; (b) the Plaintiff has a benefit to seek confirmation of ownership against the Defendant regarding the instant forest portion; (c) it is reasonable to deem that the instant forest portion is the Plaintiff, and therefore, determined that the instant forest portion is owned by the Plaintiff, on the grounds that (a) there is a reasonable ground to view that the instant forest portion is the Plaintiff in the registry and the forest land register under the forest land register.

4. However, examining the reasoning of the lower judgment in light of the above legal doctrine and factual relations, the lower court’s determination that recognized the benefit of confirmation is difficult to accept for the following reasons.

A. (1) The lower court held that the title holder is the Plaintiff on the other hand, while recognizing that the “△△△” on the instant forest share in the register does not have the capacity to presume the right as a person who does not have the capacity to hold the right, which is indicated in the “△△” and the “Weltoe” on the register book, is inconsistent.

(2) If the presumption of right to the instant forest shares is not recognized as a person whose name is not registered on the registry as to the instant forest shares as indicated in the original judgment, this shall be considered as a registration of invalidity of cause, in the end, for the purport that the registration of transfer is made in the future where the registration of transfer is unauthorized. However, the registration of invalidity of the name without permission shall be cancelled (see Supreme Court Decision 90Da684, 90Meu3307, May 8, 1990). The Plaintiff cannot acquire ownership by the registration of invalidity of cause.

However, the conclusion of the lower court is that the Plaintiff acquired ownership by means of the registration of transfer on the share of forest land in this case. Accordingly, the practical purport of the lower court’s decision is that the actual right holder who completed the registration of transfer on the share of forest land in this case is the Plaintiff and the registration of transfer is valid, but it appears that the name of the Plaintiff was erroneously written in the registry.

(3) However, if the name “△△△” on the registry of the forest of this case is the same person as the Plaintiff. However, if the name of the title holder or the resident registration number is not different from the Plaintiff in the registration process, the identity of personality is recognized even if the name of the title holder is partially identical to that of the Plaintiff, so it is possible to register a change in the name of the title holder based on the Plaintiff’s actual name and resident registration number. Ultimately, the Plaintiff may solely file an application for the change in the name of the title holder (Article 23(

B. In addition, since the cadastral record does not prove matters concerning a landowner with respect to a registered land, where there is any error or omission in the name, address, resident registration number, etc. of a registered titleholder entered in the land register, the registration of correction of a registered titleholder’s indication shall first be made upon the application of a true owner. In addition, a correction of registered matters concerning a landowner in the cadastral record shall be made through a registration certificate, a notice of completion of registration, a certificate of registration certificate, or a registration computerized data provided by the registry office (see, e.g., Supreme Court Decisions 84(4) main text of Article 84(4) of the Act on Land Survey, Waterway Survey and Cadastral Records, and Supreme Court Decision 201Da379

Therefore, even if the portion of the owner’s name and resident registration number recorded in the forestry register is different from the Plaintiff with respect to the portion of the forest land in this case, it shall be corrected through the registration of correction of the registered titleholder, and no other benefit exists to seek confirmation of ownership with regard to the circumstances regarding indication in

C. In addition, there is no special circumstance for the Plaintiff to seek confirmation of ownership against the Defendant, such as denying the Plaintiff’s ownership and asserting that the Defendant continued to own the forest shares in this case.

D. Ultimately, the instant lawsuit cannot be deemed as the most effective and appropriate means to eliminate the Plaintiff’s right to share in the forest land of this case or the anxiety and risk of legal status. Therefore, it is reasonable to deem that there is no benefit of confirmation as it is unlawful.

5. Nevertheless, the lower court determined that there was a benefit of confirmation on grounds of the reasoning of the judgment as seen earlier, and rejected the Defendant’s main defense against this issue.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the interest in confirmation, which affected the conclusion of the judgment. The ground of appeal assigning this error is with

6. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case 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 Kim So-young (Presiding Justice)