Plaintiff (Attorney Park Jin-jin, Counsel for the plaintiff-appellant)

Korea

February 25, 2010

Seoul Central District Court Decision 2009Kahap51498 Decided August 18, 2009

1. The plaintiff's incidental appeal and the defendant's appeal are all dismissed.

2. The costs of incidental appeal shall be borne by the Plaintiff, and the Defendant respectively.

1. Purport of claim

The defendant shall pay to the plaintiff 980,928,00 won with 5% interest per annum from May 1, 2009 to the rendering of a judgment in the first instance, and 20% interest per annum from the next day to the full payment day.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked. The plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 294,278,400 won with 5% per annum from May 1, 2009 to August 18, 2009 and 20% per annum from the next day to the full payment date.

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by comprehensively considering the overall purport of the pleadings in each entry in the evidence Nos. 1 and 2-1 and 2-1:

A. On June 26, 1974, the Suwon District Court rendered a registration of preservation of ownership in the name of the Defendant on the 2,554.5/109 square meters of woodland 5,109 square meters (hereinafter “the instant land”) in the Geong-gun, Sung-gun, Gyeonggi-do, for sale and purchase of each of the instant land as of December 22, 1997, the registration of ownership was completed in the name of Nonparty 1 and 2 (hereinafter “ Nonparty 1, etc.”) as of January 22, 1998 by the receipt4915 of the same registry office on January 22, 1998.

B. On April 2, 2009, in the case where the Plaintiff filed a claim against the Defendant for the cancellation of the above registration of ownership transfer against Nonparty 1, etc., the Seoul Central District Court 2008Gahap94375 against the Defendant, etc., on April 2, 2009, the judgment against the Plaintiff was rendered against the Defendant on the ground that “the Plaintiff’s prior owner of the Plaintiff is presumed to have received the assessment of the instant land, and the registration of ownership transfer in the Defendant’s name is null and void, and the Defendant is obligated to implement the procedure for the registration of cancellation, since the registration of ownership transfer in the name of Nonparty 1, etc. with respect to the instant land was completed on Jan. 22, 2008 after the lapse of 10 years from the date the registration of ownership transfer was completed, the registration of ownership transfer by Nonparty 1, etc. was valid in accordance with the substantive relationship.” The judgment against the Plaintiff, Defendant 1 and Nonparty 2 became final and conclusive as to Apr. 29, 2009.

2. Determination

(a) Occurrence of liability for damages;

(1) According to the above facts, since the registration of ownership preservation in this case is invalid, the defendant is obligated to implement the registration procedure for cancellation of ownership preservation in this case's land ownership, and since the registration of ownership transfer was made in the name of non-party 1, etc. based on the registration of ownership preservation in this case's name, it is recognized that the registration of ownership transfer in the name of the non-party 1, etc. was valid for the completion of prescription in the lawsuit filed against the defendant and the non-party 1, etc., the defendant's obligation to perform the registration procedure for cancellation is eventually impossible. Thus, the defendant is obligated to compensate the plaintiff for damages caused by the failure to perform the above registration procedure, barring any special circumstances

(2) As to this, the Defendant stated that even if the instant land is not registered in the original forest register, Japan is the owner in the old forest register and the relevant public record book, and accordingly, the registration of preservation of ownership of the instant land has been completed through due process, such as the procedure for acquiring unregistered real estate, etc.

According to the statement Eul evidence No. 1, although it is acknowledged that the owner stated "(one name omitted) and two other persons" as the owner in the old forest register of this case, the land of this case is not registered in the forest register of attribution, namely, the land of this case, which was restored as of April 1, 1967, without any legal basis before the amendment of the Cadastral Law, is restored to the original forest register of this case for administrative convenience without any legal basis, and there is no presumption of rights. Further, the defendant did not make any assertion or evidence as to the circumstances in which the registration of preservation of ownership was completed, and the defendant did not present any reasonable evidence as to whether there was due process, such as the procedure for acquiring non-owned real estate under the State Property Act at the time of the completion of the registration of preservation of ownership, and it appears that the Forest Survey Division of this case is existing, and the plaintiff's assertion that there was no legitimate reason for loss of the ownership of the land of this case and there was no other reason for the defendant's loss of the ownership of the land of this case.

(b) Scope of damages;

(1) The amount of damages incurred by a right holder due to the impossibility of performing the procedure for registration of cancellation of real estate registration is, in principle, equivalent to the market price of the object at the time when such performance becomes impossible. Meanwhile, in a case where a third party ownership registration has been made based on the registration of cancellation of ownership, which is null and void, the above registration of preservation of ownership shall be determined by litigation or other means. Thus, if a lawsuit against the third party, etc. filed by the owner against the third party who is the registered titleholder, becomes final and conclusive, the obligation to register cancellation of ownership registration at the time of the loss is deemed to be impossible, and even if the owner lost as the acquisition by the registered titleholder was accepted in the above lawsuit for cancellation of registration, etc., it shall not be deemed that the status of performance at the time of the completion of acquisition is not reached (see Supreme Court Decisions 200Da18196, Jan. 30, 201; 2005Da29474, Sept. 15, 2005).

Therefore, the Defendant’s obligation to implement the registration procedure for cancellation of ownership preservation shall be deemed to have reached the failure of April 30, 2009, when the judgment against the Plaintiff was final and conclusive in the previous lawsuit, and according to the market price entrustment with Nonparty 4 of the first instance trial, the market price as of April 30, 2009 of the instant land is 980,928,000 won. Thus, the Defendant is obligated to pay to the Plaintiff the amount equivalent to the market price as of April 30, 200 of each of the instant land at the time of nonperformance.

(2) However, by neglecting to take measures such as ascertaining the ownership ownership of the land of this case and whether to inherit it for a long time, there was an error in failing to cope with the registration of ownership preservation in the name of the defendant and the registration of ownership transfer in the name of Nonparty 1, etc., and such negligence on the part of the plaintiff was also the cause of the damage of this case. Therefore, in determining the amount of damages to be compensated by the defendant, it shall be considered in determining the amount of damages to be compensated by the defendant, but it shall be reasonable to view that such ratio exceeds 30% in light of the above facts

(3) As to this, the Plaintiff was well aware that the instant land was not owned by Japan at the time of the release because the Defendant was not registered in the forest register to the forest register to which it belongs, and the Plaintiff unilaterally made registration of preservation of ownership in the name of the Defendant without taking such measures despite the receipt of the owner’s report at the time of the restoration of land or the receipt of the lawful right holder’s report through publication of unregistered real estate, etc., which eventually led to the failure of the Defendant to perform registration procedures for cancellation of registration of preservation of ownership by intention of the Defendant, and thus, it shall

As seen earlier, it is reasonable to deem that there was an error by which the registration of ownership preservation was made to the Defendant without delay. However, in light of the degree and circumstance of the violation of the duty, it is not intentional but negligent. Therefore, the Plaintiff’s above assertion is without merit.

(4) Therefore, the defendant is obligated to pay to the plaintiff 686,649,600 won (i.e., 980,928,000 won x 0.7) and damages for delay calculated by the rate of 5% per annum under the Civil Act from May 1, 2009 to August 18, 2009, which is the date when the judgment of the court of first instance, is rendered by the defendant as to the existence and scope of the obligation to pay to the plaintiff 686,649,600 won (i.e., 980,928,000 won x 0.7).

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion. Thus, the plaintiff's incidental appeal and the defendant's appeal are dismissed as it is without merit. It is so decided as per Disposition

Judges Kim Dong-ok (Presiding Judge)