Plaintiff (Law Firm Pyeongtaek, Attorneys Kim Young-hee et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm Hawn et al., Counsel for the defendant-appellant)

May 10, 2017

1. All of the plaintiff's claims are dismissed.

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

(3) Each of the registration procedures for cancellation of ownership transfer under [Attachment 1] No. 3978 of August 4, 2004 with respect to the land listed in [Attachment 1] 1, 2, 3, 15-1, 2, 174 and 175 of the Seoul Central District Court with respect to each of the following listed shares in [1] 1, 2, 15-1, 2, 16-1, 3, 16-1, 2, 16-1, 2, 3, 16-1, 2, 16-1, 2, 16-1, 2, 36-1, 4, 16-1, 2, 16-1, 36-1, 16-2, 19, 204, 2, 17-2, 47, 196-1, 47, 27, 197).

1. Basic facts

A. Status of the parties

1) The Plaintiff is the deceased Nonparty 1’s heir to Australia, who inherited the deceased Nonparty 1 solely in accordance with the law at the time.

2) Defendants 1, 2, 3, and 4 (hereinafter “Defendant 1”) are the deceased Nonparty 2 and the deceased Nonparty 6’s successors.

3) Defendant South-North companies are companies established by the deceased non-party 2 on March 29, 1969 by the deceased non-party 2 for the purpose of the sale and purchase of land and the lease of the land under Section 1-7, Jung-gu, Seoul.

4) The deceased Nonparty 1 and Nonparty 2 are siblingss.

(b) Registration of transfer of ownership or revision thereof;

1) On March 30, 1947, Nonparty 1 purchased from Nonparty 3 and Nonparty 4 the land of this case 12-3 Hobbbes, ( Address 3 omitted), ( Address 4 omitted), site 7-7 square meters, ( Address 5 omitted), site 9-4 square meters, ( Address 6 omitted), site 60.4 square meters, ( Address 7 omitted) site 25 square meters, ( Address 8 omitted) site 0.70 square meters (hereinafter “instant land”) and above-ground buildings (hereinafter “instant real estate”). Nonparty 1 purchased the instant real estate from Nonparty 3 and Nonparty 4 by adding the instant land and above-ground buildings (hereinafter “instant real estate”). On July 5, 1947, the Seoul Central District Court’s registry No. 13415, the provisional registration was completed.

2) On February 11, 1951, Nonparty 1 died during the war. Nonparty 1 completed the registration of transfer of ownership on the instant real estate under Nonparty 1’s name as Nonparty 1’s mother-friendly Nonparty 8, who was aware of Nonparty 1’s death, for Nonparty 1’s receipt No. 1213 on June 8, 1952.

3) On July 20, 1952, Nonparty 2 completed Nonparty 2’s registration of correction (hereinafter “each of the instant correction registrations”) with Nonparty 1’s address indicated in the instant real estate as “Seoul Jongno-gu ( Address 2 omitted)’s domicile,” which is Nonparty 2’s domicile, on the ground of the error in filing an application. Nonparty 2 completed Nonparty 1’s name as Nonparty 1’s receipt under Article 1745 as “Nonindicted 2” (hereinafter “instant correction registration”).

(c) Division and consolidation of land and transfer of ownership;

The instant land was divided and merged as indicated below, and its ownership was transferred to the Defendants, and became each land listed in the separate sheet No. 1.

(1) On April 14, 1971, Defendant 1-2 (Attached Table 1 List No. 4-2 (Attachment Table No. 1 List No. 4-2 (Attachment Table No. 1), Defendant 5-5 (Attachment Table No. 2) on April 14, 1971, Nonparty 6 ① Inheritance by consultation on February 25, 2004 ? ② Inheritance by Nonparty 6’s death 5-65-6 (Attachment Table No. 1 List No. 3) to Defendant 1, etc. ② Inheritance by consultation on February 25, 2004 ? Inheritance by Nonparty 6 ① Inheritance by consultation on February 25, 2004 ② Inheritance by Nonparty 6’s death 6-26-2 (Attachment Table No. 1 List No. 42) on February 18, 1971 (Attachment Table No. 1-436, Jun. 16, 197).

(d) Removal and construction of buildings;

Around February 14, 1970, Defendant Yong-Nam Enterprise demolished the instant land and constructed a 13-story business establishment and office building on the land of Jung-gu Seoul Special Metropolitan City ( Address 3 omitted) Jung-gu (hereinafter “Seoul Special Metropolitan City”) and occupied the said land.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, 11, purport of the whole pleadings

2. The plaintiff's assertion

Since Nonparty 2 infringed upon Nonparty 1’s ownership by making a registration of correction with his address and name as to the instant land owned by Nonparty 1, the Defendants, who received ownership transfer from Nonparty 2 or succeeded to his status, are obligated to cancel the registration of correction and registration of transfer of ownership in the purport of the claim against the Plaintiff who inherited Nonparty 1. Defendant South-North Company, without any legal cause, obtained profits equivalent to the rental fees by owning a building on the land in Seoul, Jung-gu ( Address 3 omitted), Seoul, which includes the land in paragraph (1) of the attached Table 1, and thus, is obligated to return the money calculated at the rate of KRW 2,375,035,230, the ten-year rental fee from the delivery date of the complaint of this case, and the delay damages therefrom, and the amount calculated at the rate of KRW 25,68,633, monthly from the following day of the delivery date of the complaint

3. Determination

(a) Whether the registration of correction is invalid;

Since there is no dispute as to the fact that the registration of each of the instant revisions was not the same person, the registration of “Nonindicted 1” registered as the owner prior to the completion of the registration of each of the instant revisions, and “Nonindicted 2” registered as the owner by the registration of correction, each of the instant revisions constitutes a case where the registration was made by a method detrimental to the identity of the registered titleholder and led

Therefore, barring special circumstances, each of the correction registrations of this case completed in the name of Nonparty 2 and the transfer registration of ownership thereafter are invalid registration (see Supreme Court Decision 2004Da36475, Nov. 12, 2004). Thus, the Defendants are obligated to perform the procedure for registration of correction of claim and cancellation of ownership transfer registration to the Plaintiff who inherited Nonparty 1, and Defendant South-North Company is obligated to return unjust enrichment obtained by occupying the land in attached Table 1 Section 1.

B. Determination of the defendants' assertion

1) The defendants' assertion

① Since the ownership transfer registration in the name of Nonparty 1 was completed after Nonparty 1 died, the instant land is not owned by the Plaintiff. ② The instant land is donated to Nonparty 2 after Nonparty 5’s purchase by Nonparty 1’s father and Nonparty 1, and even if not, Nonparty 2 and the Defendants were to occupy and hold the instant land in good faith and without fault and with intent to own it, and thus, the registration of each of the instant revisions and the ownership transfer registration thereafter are consistent with the substantive relations.

2) Determination on the title to request for cancellation registration

The non-party 1 completed the registration of transfer of ownership on the ground of sale on March 30, 1947 as Seoul Central District Court No. 1213 of Jun. 8, 1952. The deceased died on February 11, 1951. The plaintiff himself asserts that the non-party 1 did not directly file an application for the registration and completed the registration of transfer of ownership under the non-party 8's name with the help of the non-party 5. The ground for the registration of transfer of ownership was earlier than that of July 5, 1947 when the provisional registration was completed on March 30, 1947. Since it is difficult to view that the non-party 1 actually exercised the right to complete the sale of the land after the pre-sale and provisional registration on March 30, 1947, it is presumed that the non-party 1's right to claim ownership transfer was invalid on the ground of sale and purchase as well as the non-party 2's right to claim ownership transfer registration under the non-party 1's name 98.

Therefore, the Plaintiff does not have the right to file a claim against the Defendants for the registration of each of the instant revisions and the cancellation of ownership transfer thereafter (see Supreme Court Decision 2004Da50044 delivered on September 28, 2005).

2) Determination as to whether registration conforms to substantive relations is made

A) There is no evidence to acknowledge that the instant land was purchased by Nonparty 5 and donated to Nonparty 2.

B) However, there is no dispute over the fact that Nonparty 2 and the Defendants occupied the instant land for at least 20 years, and the possession was presumed to have occupied in good faith, peace, and public performance with the intent to own the instant land pursuant to Article 197(1) of the Civil Act, and the statute of limitations for the acquisition of possession was completed on June 13, 2016, when the Plaintiff filed the instant lawsuit from June 13, 2016 to June 13, 1996.

Therefore, even if an illegal registration of correction was completed without the identity of the nominal holder, it constitutes a case where the registration was made after the correction, and it also conforms to the substantive relationship (see Supreme Court Decision 95Da2135, Apr. 12, 1996). Therefore, each of the registration of correction of this case and the registration of transfer of ownership thereafter is valid.

The Plaintiff, while being aware of the fact that Nonparty 2 did not have any legal act or other legal requirements that may cause the acquisition of ownership at the time of the commencement of possession, occupied the instant land without permission, and the Defendants succeeded to the said possession by Nonparty 2, thereby asserting it as the possession of the owner

However, there is no evidence to deem that each of the registrations of this case was completed through the formal examination by the registrar and there was no procedural defect in the process, each of the registrations of this case was completed at approximately 1 month, where the registration of ownership transfer in the name of Nonparty 1 was completed, and Nonparty 1’s family members, including Nonparty 5, knew that Nonparty 1 was living, and reported the death on June 13, 1962, and it is difficult to deem that Nonparty 2 occupied each of the registrations of this case without permission, knowing that Nonparty 1 was aware that the ownership of the living Nonparty 1 was infringed, and that the Plaintiff was aware of each of the registrations of this case after inspecting the land registers of this case on December 12, 197, and did not take any special measures for the nearest period of 30 years. In light of the fact that each of the registrations of this case was completed by a method detrimental to the identity of the registered titleholder, there is insufficient evidence to recognize otherwise.

Therefore, the registration of transfer of ownership in the name of the Defendants as to the land of this case is valid in accordance with substantive relations.

4. Conclusion

Therefore, the plaintiff's assertion based on the premise that the land owned by the plaintiff and the defendants infringed the plaintiff's ownership is without merit. Thus, all of the plaintiff's claim of this case is dismissed.

[Attachment Omission]

Judges Tae Tae-ge (Presiding Judge)