2015da5282 Registration of transfer of ownership

A

Korea

March 10, 2016

April 21, 2016

1. Of the Plaintiff’s conjunctive claim, the part demanding the implementation of the procedure for cancellation of the registration of the owner’s ownership in the Defendant’s name on March 17, 2006, 2006 square meters of land cadastre B 615 square meters of land cadastre at the time of harmony shall be dismissed.

2. The plaintiff's primary and other conjunctive claims are all dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

In the first place, the defendant performed the procedure for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition on March 6, 1991 with respect to the plaintiff on the land C Daesung-si 435m (hereinafter referred to as "C land"), and confirmed that the appraisal in the attached Form 22, 23, 6, 7, 24, 8, 9, 27, 10, 11, 12, 26, 13, and 22 square meters connected in order to the plaintiff on the ground of the completion of the prescriptive acquisition on March 6, 191, and that the total of 303 square meters in C 2, 23, 6, 7, 24, 8, 9, 27, 101, 10, 12, 26, 13, and 222.

Preliminaryly, the Defendant performed the procedure for cancellation registration of ownership preservation completed on November 18, 201 by the Suwon District Court, the Sungsung District Court, the registration of ownership preservation, which was completed on November 18, 201 by the receipt No. 8394, and fulfilled the procedure for cancellation registration of ownership registration on March 17, 2006 for the land cadastre B.

1. Basic facts

A. On March 6, 1971, the Plaintiff’s registration of initial ownership was completed on March 6, 1971 with respect to D forest land 4,860 meters (hereinafter “D forest”), and on August 26, 1991, the Plaintiff completed the registration of ownership transfer based on inheritance by agreement and division on October 30, 1981 with respect to the above forest land.

B. On March 17, 2006, the Defendant newly registered as the owner of B forest land and land adjacent to D, and on January 18, 201, the registration of preservation of ownership in the name of the Defendant was completed with respect to land C. The Plaintiff considered as part of C forest and land F and his father, and the Plaintiff considered as part of D forest and land, and installed several graves within 187 meters (hereinafter “B forest and land occupation portion”) connecting each point of B’s appraisal in attached Form No. 22, 23, 23, 6, 7, 24, 25, 26, 13, and 22. Since the Plaintiff’s increase and decrease, F and his father, 27, 28, 29, 30, 30, 31, 334, 35, 37, 37, 37, 35, 37, 37, 35, 34, 37.

[Reasons for Recognition] Unsatisfy Facts, Gap 1, 5, 6, 8, and 9, each entry, the result of appraiser I's appraisal, the purport of the whole pleadings

2. Whether some of the preliminary claims are legitimate.

On March 17, 2006, the plaintiff sought implementation of the procedure for cancellation of the registration of the owner in the name of the defendant on March 17, 2006 on the land cadastre B's forest land cadastre.

The act of changing a certain matter on the land cadastre is merely for the convenience of the execution of administrative affairs and the certification of facts, and even if the name of the owner is changed, it cannot bring about a change in the substantive legal relationship with respect to the relevant land, and the ownership of the land is not proved by only the entry in the cadastral record. Therefore, seeking the procedure of cancellation of the owner registration on the land cadastre is unlawful as there is no benefit of lawsuit.

3. Judgment on the plaintiff's assertion

A. The assertion

From March 6, 1971, the father of the Plaintiff began to possess B forest and C as the owner’s intention, and after the Plaintiff died on October 30, 1981, the Plaintiff succeeded to E’s possession. Since the acquisition by prescription for possession of each of the above possession was completed on March 6, 191, the Plaintiff sought confirmation as the owner of the primary claim in B forest and land.

The Defendant had an important defect in the procedure where ownership registration was conducted on the ground that forest land B and C were non-real estate, and the Defendant did not exercise his/her right as an owner even after completing the ownership registration and the registration of ownership preservation. The Land Use Regulation System on September 20, 201 also did not indicate the said land. In light of these circumstances, inasmuch as no forest land B and C exist, registration of ownership preservation in the Defendant’s name as to land C is the land in which no land exists.

B. Judgment on the main claim

Unless there are other special circumstances, a person who owns a grave on another’s land occupies another’s land only to the extent necessary to preserve and manage the grave, and thus, the intention of possession is not presumed to be the nature of possession (see, e.g., Supreme Court Decision 97Da3651, Mar. 28, 1997). The father of the Plaintiff and the Plaintiff’s father and the Plaintiff installed a grave on the part of the forest owned B. Thus, the possession is not presumed to be possession with intention of possession with intention of possession with intention of possession with intention of possession with intention of possession with intention of possession with intention of possession with intention of possession with intention of possession with respect to the above part of the grave. Thus, the Plaintiff’s claim on the part of forest owned on the premise that the prescription of possession has expired is without merit.

The plaintiff newly constructed a house in 1950 by his capital increase F in the part of the land possession of C, and thereafter the son of the capital increase survey division resided in Samnam in 1950. According to the evidence No. 10 and No. 11, since 2008, the plaintiff imposed property tax on the plaintiff on the ground that 341.5m of D forest land is being used as a housing site from 2008, but the owner of two buildings on the above forest land was recognized as H. According to the above facts, the taxing authority deemed that H's building in the part of land possession of C is located in D forest land and imposed property tax on the plaintiff who is the owner of the above forest land. Since the ownership of the above building is H, it cannot be deemed that the acquisition by prescription for the part of land possession by the plaintiff is completed. Therefore, this part of the claim is without merit.

C. Determination on the conjunctive claim

According to Gap evidence Nos. 10, 2006, 17 March 17, 2006, the new registration notice sent to J, stating that "K is the location of a newly-registered land." However, in light of the fact that "B forest 615m and C large 435m is discovered in the above notice and that "after the new registration was made as of March 17, 2006," it is deemed that "K is a simple clerical error."

According to Gap evidence No. 2, although the fact that B forest land and C are not indicated in the Land Use Regulation System around September 20, 201, it is not sufficient to recognize that there is a serious procedural defect in the new registration of the above real estate or that there is no such real estate. Thus, the plaintiff's preliminary claim for this part is without merit.

4. Conclusion

Therefore, the part of the preliminary claim seeking the execution of the procedure for cancellation of the registration of the owner’s ownership in the Defendant’s name on March 17, 2006, among the preliminary claims, is unlawful as there is no benefit of lawsuit, and the main claim and the remainder of the preliminary claim are all dismissed as it is without merit. It is so decided as per Disposition.

Judges in the District of Justice