2012Da69265 Registration of ownership transfer constituting a cause of the restoration of title

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

JTTITRALS

Seoul High Court Decision 2011Na93300 Decided July 12, 2012

January 29, 2015

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

We examine the grounds of appeal ex officio prior to judgment.

Matters concerning the existence of an organization's capacity to be a party is a matter of ex officio investigation by the court, and thus, the court should ex officio investigate the facts that form the premise for the determination of the party's capacity without being bound by the allegations of the parties. However, in determining the existence of the party's capacity, it is sufficient that the party's ability to be a party in a lawsuit is satisfied if the party's existence of an organization equipped with the elements that define an organization as a social entity, such as the purpose, organization, and members, exists, and if the organization actually exists, it is sufficient to dismiss the lawsuit as unlawful (see, e.g., Supreme Court Decision 94Da41249, Dec. 9, 197).

The court below, citing the reasoning of the judgment of the court of first instance, acknowledged the facts as stated in its holding, and determined that the defendant cannot be deemed as having a substance as an organization that performs independent activities for the purpose of protecting graves and conducting religious services for the purpose of common ancestor, and that it cannot be deemed as having a unique meaning of conducting continuous activities, and that it cannot be deemed as having satisfied the substance of a non-corporate association that is a non-corporate organization

In light of the above legal principles, the court below should have dismissed the lawsuit in this case where the plaintiffs filed against the defendant for the registration of ownership transfer on the ground of the restoration of real name, and the lawsuit in this case was filed against the defendant without capacity to be a party, and thus, should have been rejected. Nevertheless, the court below erred by misapprehending the legal principles on the party ability, thereby adversely affecting the conclusion of the judgment (where there is a false registration that interferes with the true owner's ownership on the register, if the registered titleholder is an organization without any substance, the owner may seek for the cancellation of the registration in the name of an organization with no substance representing the person who actually performed the registration under the name of an organization without such substance as the removal of interference with the ownership (see, e.g., Supreme Court Decisions 90Da684, 90Meu307, May 8, 1990; 2008Ma615, Jul. 11, 2008).

Therefore, without further proceeding to decide on the grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Young-young

Justices Min Il-young

Justices Kim Jae-han

Chief Justice Kim Jong-il