Plaintiff 1 and two others (Attorney Han-chul et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Hy-jin et al., Counsel for defendant-appellant)

April 15, 2010

1. The defendant shall implement the procedure for the cancellation registration of registration of the preservation of ownership, which was completed on July 9, 1957 by the Suwon District Court's Registry of port of Suwon with respect to the real estate stated in the attached Table 1 (1) to the plaintiffs.

2. Each of the plaintiffs' remaining claims is dismissed.

3. 14/15 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

The judgment of the court below is in accordance with Paragraph (1) of this Article, and the defendant will implement each procedure for registration of cancellation of ownership preservation, which was completed on October 26, 1957 as the receipt of No. 3771, with respect to each real estate listed in paragraphs (2) through (15) of attached Table 1 in accordance with each share in attached Table 2.

1. Basic facts

A. Each land survey division and each land survey division drawn up under the Decree on Land Survey at the Japanese Occupation Period, written by the deceased non-party 1, who had an address in the Masan-gun of Gyeonggi-do, 396 to 388, 432 to 142, 485 to 485, 1,099, 498 to 698, 496 to 498, 498, 1,581, 526 to 526, and 836, respectively.

B. Following the change of administrative district and land category, the real estate listed in paragraph (1) of [Attachment 1] was divided into 396, 380, 396, 496, and 38, and 438, 438, and 142 had been merged into the real estate listed in Annex 1’s Schedule 2, and 485, 485, 099 was divided into 485-1, 485, 485, and 5, each of the real estate listed in Annex 1’s Schedule 3, 496, 698, 498, was divided into 496, 496, and 496-1, 496, and 50, 198, 198, 198, 148, 148, 196, 205, 36, 196, 50, 196, 28, 17, 5, 2, 17, and 5, 1.

C. On July 9, 1957, the Defendant completed the registration of ownership preservation as to the real estate stated in the attached Table 1 List No. 1 by the Suwon District Court's Suwon District Court's Office of Registration of Ownership, which was received on July 9, 1957, and completed each registration of ownership preservation as to each real estate listed in the attached Table No. 2 through No. 15 of the attached Table No. 1 by the Suwon District Court's Registry of Registration of 371

D. Meanwhile, on August 15, 1956, the above non-party 1, whose permanent domicile was established in the Sinsan-ri 126 at the port of Sinsan-ri, was killed on the part of the head of Sinsan-ri, and succeeded to the property independently by the deceased non-party 3, who is his head of Sinsan-ri. The above non-party 3 died on January 10, 1994 and succeeded to the property by inheritance of the deceased non-party 4, non-party 1, 2, and both children, who are his spouse, according to their respective inheritance shares. The above non-party 4 died on February 18, 1997 and succeeded jointly by the plaintiff 1, 2, and 3, who was his spouse's property, and eventually succeeded to the inheritance of the plaintiffs in proportion to the shares listed in the annexed Table 2.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 62, fact-finding results against the head of the Dong/Dong office of this court, the purport of the whole pleadings

2. Determination on the cause of the claim

A. A person registered in the Land Survey Book shall be presumed to be the owner of the land, unless there is any counter-proof such as the change of the situation by the adjudication, and the circumstance shall be presumed to have been determined. The presumption of registration of preservation of ownership shall be broken if a person other than the title holder of the land was found to have received the situation of the land concerned, and thus the registration shall become null and void unless the title holder asserts and proves the fact of acquisition by specific succession.

B. As seen in the above basic facts, as long as the name of Nonparty 1, the fleet of the plaintiffs, was the same as that of Nonparty 1 entered in the luxio 396, 438, 485, 496, 498, and 526, the luxio 438, 496, 498, and 526, the Plaintiff’s name was the same as the luxio 1) the address of Nonparty 1 stated in the land survey division and the old land cadastre as the luxio 126, the luxio 126 and the luxio 126, the Plaintiff’s main land survey division, the Plaintiff’s name was the same as the luxio Ma, the luxio 126 and the luxio as the luxio Ma, the other luxio, the luxio-gun of Gyeonggi-gun.

C. Therefore, in the case where the real estate in this case was acquired by the non-party 1, the plaintiff's prior owner of the real estate in this case due to the death of the non-party 1, the non-party 1 and co-inheritors including the plaintiff were succeeded to each of the real estate in this case. The registration of preservation of ownership of each of the real estate in this case made in the defendant's name was broken as long as it is proved that there is a separate title holder, and the plaintiffs can seek the cancellation of registration of preservation of ownership of each of the real estate in this case as co-owner of each of the real estate in this case as part of the preservation act of common property in this case. Thus, the defendant is obligated to perform the procedure of registration of cancellation of registration of preservation of ownership of each of the real estate in this case to the defendant as co-owner of each of the real estate in this case, barring special circumstances.

3. Defendant’s assertion and judgment

A. Determination as to the assertion of acquisition of ownership due to other legitimate grounds

The defendant asserts that since the registration of preservation of ownership in the name of the defendant for each real estate of this case was made before the state-owned procedure of the non-owned real estate was stipulated in accordance with the revision of the State Property Act in 1957, and since the Act on Special Measures for the Adjustment of Farmland Reform Project was not enacted, the defendant acquired ownership of each real estate of this case due to legitimate reasons, such as sale and purchase not under the State Property Act or the Act on Special Measures for the Adjustment of Farmland Reform Project, and therefore, registration of preservation of ownership in the name of the defendant is not invalid.

The defendant's assertion is not acceptable, since there is no evidence to prove that the defendant acquired each of the real estate of this case from the above non-party 1 or the plaintiffs due to trade, etc.

B. Determination as to the assertion of acquisition through the public announcement procedure of unregistered real estate

The defendant asserts that the registration of preservation of ownership in the name of the defendant for each of the above real estate is not a registration of invalidity of cause, since each of the above real estate was properly acquired in accordance with the provision for acquisition of unregistered real estate under Articles 1053 through 1058 of the

As seen earlier, the Plaintiff’s real estate 438, 485, 496, 498, and 526 real estate was assessed against Nonparty 1 who is the fleet of the Plaintiffs. Since it is apparent that Nonparty 1’s heir is alive, each of the above real estate does not constitute a non-state-owned real estate. Thus, the Defendant’s assertion that each of the above real estate is non-state-owned real estate is without merit.

C. Determination on the assertion on waiver of ownership

The defendant asserts that the non-party 1 renounced his ownership because each of the real estate in this case was difficult to cultivate as a yellow land, and since each of the land was distributed pro rataly, there was no economic usefulness.

According to the statement in Eul evidence No. 2, although it is recognized that the above non-party 1 renounced ownership of each of the real estate of this case, it is not sufficient to recognize that the above non-party 1 renounced ownership of each of the real estate of this case, and there is no other evidence to acknowledge this differently, the above assertion is without merit.

D. Determination on the assertion of prescriptive acquisition

(1) The Defendant: (a) completed the registration of preservation of ownership on the real estate listed in [Attachment 1] List No. 1 on July 9, 1957 and occupied without negligence and peace, performance, and negligence as to the intention of ownership; (b) the acquisition by prescription on July 8, 1967, when ten years have passed thereafter, was completed; and (c) completed the registration of preservation of ownership on each real estate listed in [Attachment 1] List No. 1(2) through (15) on October 26, 1957, and occupied without negligence and peace, performance, and negligence with the intention of ownership; and (d) accordingly, the acquisition by prescription on October 25, 1967, which was completed by the acquisition of the registry on October 25, 1967, and ultimately, the registration of preservation of ownership on each real estate of

In order to recognize the acquisition by prescription of a registry under Article 245 (2) of the Civil Act, it is necessary that the person who has been registered as the owner did not have been negligent at the time of the commencement of possession, in addition to the requirements for the possession of real estate in good faith and in good faith with the intention of possession for ten years. The burden of proof as to this negligence shall be the defendant who asserts the acquisition by prescription of the registry (Supreme Court Decision 2005Da12704 Delivered on June 23, 2005). In this case, there is no evidence to acknowledge that the defendant had occupied the above real estate for ten years as alleged above and that there was no negligence at the time of such possession. Therefore, the above assertion by

(2) The defendant asserts that since the acquisition by prescription on December 15, 2005 was completed on December 16, 2005, the registration of preservation of ownership on each of the above real estate shall be effective registration in accordance with the substantive legal relationship, and thus, the plaintiff cannot respond to the plaintiff's request, because the registration of preservation of ownership is a valid registration in accordance with the substantive legal relationship.

Then, if the nature of the source of possessory right of real estate is not clear, the possessor is presumed to possess in good faith, peace, and public performance under Article 197(1) of the Civil Act. Such presumption applies likewise to the case where the State or a local government, which is the managing body of the cadastral record, occupies the real estate owned by another person without permission, even though it is proved that the possessor has occupied the real estate owned by another person without permission without permission without permission, barring any special circumstance, the possessor shall be deemed not to have rejected another person’s ownership and have no intention to occupy it. Thus, the presumption of possession with intention to own is difficult (Supreme Court en banc Decision 95Da28625 delivered on August 21, 197). Meanwhile, even if the State or a local government fails to submit documents concerning the procedure for acquiring the prescriptive acquisition, it cannot be readily determined that the State or a local government has occupied the land with the knowledge that there was no possibility of possessing the land without permission or for other reasons before June 25, 1997 or that the State or a local government can not be determined otherwise.

In full view of the purport of the pleadings in the statement No. 60-1 through 5, No. 60-1, and No. 1, the Defendant’s entire pleadings: (a) completed the purchase of land on the ground of each real estate listed in attached Table No. 1’s Schedule No. 2 through No. 15, from December 16, 1985 to June 16, 1985; and (b) constructed a golf course and opened it on July 8, 1988; and (c) used each of the above real estate as its green, landscape, and cart roads until now; (d) even if the Plaintiff or the owner of each of the above real estate resided in around 1957 or around 1985, when the registration of ownership transfer was completed, it cannot be deemed that the Defendant could not lawfully establish that the Defendant occupied the above real estate under the name of the Defendant or the owner of each of the above real estate without permission, or that there was no possibility of the Defendant’s separate acquisition of ownership at each of the above real estate for public use.

Therefore, on December 15, 2005, the defendant's possession of each of the above real estate after 20 years from the above possession commencement date was completed.

E. Sub-committee

Ultimately, in the case of each real estate listed in paragraphs (2) through (15) of the attached Table 1, since the registration of preservation of ownership in the name of the defendant as to such real estate is valid in accordance with the substantive relationship, the plaintiff's claim seeking the cancellation thereof is without merit, while in the case of real estate listed in Paragraph (1) of the attached Table 1, the defendant as a registered titleholder for the above real estate shall interfere with the plaintiffs' exercise of ownership. Thus, the defendant is obligated to implement the procedure for registration of cancellation of registration of

4. Conclusion

Therefore, each of the claims against the plaintiffs against the defendant of this case is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.

[Attachment]

Judges Park Sung-soo (Presiding Judge)

(1) Paragraph (2) of the former Land Survey Ordinance (Ordinance No. 2 of August 13, 1912), which was enacted in the Japanese colonial era, provides that “Where the address of the owner is the same as that of the land, the address shall be omitted, and where the Myeon, Gun, or Do is the same, the same, shall also apply mutatis mutandis.” Paragraph (4) of the same Article provides that “if there is the same name among the areas or areas in which the name is not entered under the preceding two provisions, the land survey division’s domicile is marked as public space, and there is no transit entry, it appears that Nonparty 1 was recognized that he had resided at the location of the land from the authorities at the time when the land was located.”