[1] Whether a lawsuit seeking confirmation of ownership filed against the State is appropriate for registration of ownership preservation (affirmative)

[2] The case holding that the claim for confirmation of ownership is a benefit of confirmation against the State, in case where the ownership holder is registered only as the non-party (resident 1 omitted) and the state denies that the above "non-party (resident 1 omitted)" and the "non-party's deceased person" are the same and dispute over the ownership of the plaintiffs

[1] In light of Article 130 of the Registration of Real Estate Act, if the ownership cannot be proved by a certified copy of land cadastre or a certified copy of the forestry register in the registration of preservation of ownership of real estate, the registration of preservation of ownership can only be conducted by proving the ownership by the judgment. Furthermore, if a state agency, which is the competent authority in charge, contests the ownership, a lawsuit to obtain such judgment may be brought against the State.

[2] The case holding that the claim for confirmation of ownership is a benefit of confirmation against the State, in case where the ownership holder is registered only as the non-party (resident 1 omitted) and the state denies that the above "non-party (resident 1 omitted)" and the "non-party's deceased person" are the same and dispute over the ownership of the plaintiffs

[1] Article 130 of the Registration of Real Estate Act, Article 228 of the Civil Procedure Act / [2] Article 228 of the Civil Procedure Act

[1] Supreme Court Decision 93Da5727, 5734 delivered on April 27, 1993 (Gong1993Ha, 1569), Supreme Court Decision 93Da57704 delivered on March 11, 1994 (Gong1994Sang, 1187), Supreme Court Decision 93Da58738 delivered on December 2, 1994 (Gong195Sang, 424), Supreme Court Decision 95Da14817 delivered on July 25, 1995 (Gong195Ha, 2952)

Plaintiff 1 and three others (Attorney Park Yong-dae, Counsel for the plaintiff-appellant)

Korea

Seoul District Court Decision 98Na72967 delivered on May 27, 1999

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

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below held that, in order to register the preservation of ownership of the plaintiffs' claim for the confirmation of ownership ownership of the land in the name of the plaintiffs on the ground that the land in this case was registered in the name of the deceased, who was the deceased, and the land register was registered only as the non-party ( Address 1 omitted) since the land register was destroyed and the owner was registered as the non-party (the non-party) on the land cadastre, and that the ownership holder on the land cadastre could not be known as the non-party, the registration of ownership of the land in this case was registered in the name of the deceased as the deceased as to the land in this case by proving the fact that the above non-party was registered as the owner on the land cadastre and the inheritance of the plaintiffs, the registration of ownership preservation can be completed in the name of the deceased, by proving the fact that the land in this case was registered as the deceased, and that there was some omission or errors in the name, address, etc. of the owner on the land cadastre, the owner cannot request the confirmation of ownership of the land in this case.

2. Judgment of the Supreme Court

In light of Article 130 of the Registration of Real Estate Act, if the plaintiffs cannot prove that they are owners by a certified copy of land cadastre or a certified copy of the forest land cadastre in the registration of preservation of ownership of the real estate of this case, the registration of preservation of ownership can only be conducted by proving the ownership by the judgment. Moreover, if a state agency, which is the competent authority, contests the ownership of the plaintiffs, a lawsuit to obtain such judgment may be brought against the State (see Supreme Court Decision 93Da5727, 5734, Apr. 27, 1993).

According to the records, the land of this case is unregistered and registered only as the non-party (resident 1 omitted) in the land cadastre, so it cannot be proved that the land of this case is owned by the non-party to the deceased, and since the defendant's "non-party registered as the title holder on the above land cadastre (resident 1 omitted)" and the deceased's non-party to the deceased are the same person, the claim for confirmation of ownership of this case shall be deemed as having interest in confirmation.

The circumstances of the court below's determination that there is no benefit in confirmation are cases where the defendant did not dispute that the plaintiff's deceased person and the non-party ( Address 1 omitted) is the same person and revised so that the plaintiff can be identified as the non-party to the deceased person on the land cadastre. Thus, in this case disputing the above facts, the defendant's dismissal of the lawsuit of this case on the ground that the court below did not have a benefit in confirmation and thereby did not err in the misapprehension of legal principles as to the benefit of lawsuit, thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)