The case where the court committed an unlawful act in the incomplete hearing in recognizing the presumption of loss restoration registration.

In examining whether the procedure for the registration of recovery due to destruction or damage is lawful, if the content of the registration of recovery is different from that of the registration of recovery at the time, and if the date of receipt of the application for the former registration and the receipt number are unclear, the examination shall be added as to whether the registration of recovery is made prior to the loss of the register.

Article 393 of the Civil Procedure Act

Korea

Defendant 1 and three others

Daegu District Court Decision 72Na97 delivered on September 12, 1972

The original judgment is reversed, and the case is remanded to the Daegu District Court Panel Division.

According to the records, although the real estate in this case was owned by Nonparty 1, Japan on the register at the time of August 9, 1945, and it was owned by the State pursuant to Article 33 of the military law, Defendant 1 was registered in his own name as if he had been registered in his own name as of December 30, 195 as of November 15, 1935, and without any basis for the registration of recovery of ownership transfer as of May 13, 1961, the registration of ownership transfer was completed in the future by Defendant 2, Defendant 3, and Defendant 4’s deceased deceased non-party 2 (Death of April 12, 1969) who was the deceased of his deceased on his will (the deceased of April 12, 1969).

As such, it is argued that the above restoration registration under Defendant 1 and the registration of the transfer in the future of the deceased Nonparty 2 based on the above registration are invalid without any cause, and thus, the cancellation is sought in this case.

However, according to the reasoning of the judgment of the court below, each of the above restoration and registration of transfer by the entry of No. 1, 2, and No. 3 (No. 1) without dispute in the establishment, and the real estate of this case is presumed to be owned by the above defendants, and the real estate of this case is presumed to be owned by the above defendants, and the plaintiff's testimony of No. 2-1, 2 (No. 1, 3, and 4 and the witness's testimony of Non-party 3 alone is insufficient to support the plaintiff's above assertion.

However, it is clear that registration of restoration due to original destruction is not a new registration of alteration of a right, but a new registration of restoration due to destruction is required to be accompanied by the certificate of completion of the previous registration destroyed in the procedure. In this case, the application form for the previous registration, the date of receipt and the receipt number are required to be stated (see Articles 79 through 81 of the Registration of Real Estate Act). In light of the above, the date of receipt and receipt number of the previous registration are unclear, respectively, according to the copy of the register No. 1, No. 1, No. 2 of the Registration of Real Estate Act, the certificate of completion of the previous registration under Article 80 of the Registration of Real Estate Act at the time of application for restoration registration, or a copy or abstract of the register prior to the destruction which was permitted as a substitute for the above certificate of completion of registration at the time of preparation of the Supreme Court in 1952. Meanwhile, according to Article 11 of the Registration of Real Estate Act (the purport of Article 11 of the Registration of Real Estate Act being used in the Joseon Decree prior to this Act), it is to be stated without delay in the registration office’s.

In addition, even by the testimony of Nonparty 4, the witness, who was the paper of the location of the instant real estate investigated by the court below, the registration relationship of the instant real estate was fully known.

In light of the above circumstances, there is no doubt about the fact that the procedure for the registration of recovery to the real estate of this case was lawful.

Therefore, in order to reject the plaintiff's assertion in the court below, it should have further deliberated on whether there was a registration such as the above restoration registration before the loss of the registry of this case, not only the estimated power of registration but also the registration of this case.

Therefore, the court below's rejection of the plaintiff's claim is not erroneous in the misapprehension of the legal principle as to the plaintiff's claim, and the defendant's appeal, which can be seen as unlawful, is therefore justified, and the original judgment is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Yang Byung-ho (Presiding Justice)