(영문) 서울중앙지방법원 2013.12.27. 선고 2013가합16485 판결

1. The defendant Republic of Korea will implement the procedure for the cancellation of registration of cancellation of registration of ownership preservation, which was completed on July 6, 1995 by the Suwon District Court, Leecheon-si Office of 1,137 square meters with respect to the plaintiff as Leecheon-si B forest and field B.

2. The plaintiff's remaining claims against the defendant Republic of Korea and the claims against defendant SP Corporation are dismissed, respectively.

3. Of the costs of lawsuit, 3/4 of the portion arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant Republic of Korea, and the portion arising between the Plaintiff and the Defendant SP Corporation

Purport of claim

Disposition Paragraph 1 and

1. As to the Plaintiff with respect to the sum of 347.2 square meters, 207.0 square meters, part of 1,938.8 square meters, which was located within the scope of the local government, and 2,493 square meters, which are the sum of 1,938.8 square meters, connected in the following order:

A. Defendant Korea’s registration of initial ownership completed on April 15, 1965 by the Songdong District Court of Seoul Eastern District Court No. 7007;

B. The Seoul Eastern District Court (Seoul East District Court 10028) received on February 7, 2007 and each transfer of ownership completed on March 3, 201 with the receipt of No. 12057 on March 3, 2011.

Each cancellation registration procedure shall be implemented.

2. Defendant SPS Corporation:

A. The meaning of registration of preservation of ownership completed by the Seoul Eastern District Court No. 39320, Jul. 4, 2011 with respect to the aggregate of 554.2 square meters on board, which connects each point of the attached Form 1, 2, 3, 4, 5, 6, 28, 29, 30, 31, 32, 33, and 18, in sequence, of the indication of the map in the attached Form No. 46,537 square meters in Songpa-gu Seoul Metropolitan Government D D, and the indication of the map No. 347.2 meters in the ship, and the indication of the map No. 18, 19, 20, 21, 22, 23, and 18.

B. The registration of preservation of ownership, completed on July 4, 201 by the Songpa-gu Seoul Eastern District Court No. 39320, which was completed on July 4, 201 with respect to the part 1,938 square meters on the ship, which connected each point of the attached drawing Nos. 6 through 18, 23 through 28, and 6, among the area of 9,900.1 square meters for the school site E (Seoul)

Each cancellation registration procedure shall be implemented.

Reasons

1. Basic facts

(a) Entry in land survey records;

1) According to the Land Survey Book drawn up in the Japanese Occupation Period, ① Gyeonggi-gun Flux 754 square meters (hereinafter referred to as the “1-assessment land”) is written as follows: (i) in 1911, the G (hereinafter referred to as the “Sacheon-gun Hacheon-gun”); (ii) in Echeon-gun B, Gyeonggi-gun B, 34 square meters (hereinafter referred to as the “2-assessment”), the land was written as the one under which I was located without entering the address.

2) Article 313 subparag. 4 of the Rules on the Investigation of the Provisional Land Survey Bureau No. 313, which is a provision relating to the preparation of the Land Investigation Board, provides that “Where the address of the owner is the same as that of the land, the address shall be omitted, and the case of the Myeon, father, Gun or Do is the same, this shall also apply mutatis mutandis.”

(b) Alteration of the current status of the land under circumstances and process for completing ownership transfer registration;

(1) Changes in the current status and registration of ASEAN Korea by Defendant and the incorporated association;

A) The land in question No. 1 was modified as follows.

○ Registration by converting a unit of area on October 1, 197 into a square meter (land size).

on December 30, 1978

○ Change of administrative district on October 1, 1979 to Songpa-gu JJ.

○ On February 13, 1984

○ On July 24, 1985, consisting of 28,942 square meters in Songpa-gu Seoul Metropolitan Government by combining with other land on July 24, 1985

○ On February 7, 1992, the land merged as above is divided into Songpa-gu Seoul Metropolitan Government 19,923 square meters (hereinafter referred to as "Gu cadastral land") and K and L land, respectively.

B) Meanwhile, on April 15, 1965 with respect to the land under the circumstances, the Defendant Republic of Korea sold a lot of land, including the land under the first condition to the New Generation Land Association (the title of the corporation is changed to several times, and the current name was changed to hereinafter referred to as 'AB Korea'; hereinafter referred to as 'AB Korea') on September 30, 1983, and on December 5, 1983, the said corporation completed the ownership transfer registration for each of the above land under Article 183672 of the same registry office (hereinafter referred to as 'AB transfer registration for each of the above land') on the ground of the above sale under Article 183672 of the same registry office. The land purchased by ABF Korea was divided on July 29, 1985, as described in the foregoing paragraph (a).

(b) Execution of the housing site development project, and registration fees for Defendant SP construction;

A) On December 6, 2002, the Minister of Construction and Transportation, upon notification of the Ministry of Construction and Transportation on December 6, 2002, designated the Songpa-gu Seoul Special Metropolitan City J J J J J 648,194 square meters as a prospective housing site development area, including the land in the first situation, as the project executor of the said housing site development project.

B) The Mayor of Seoul Special Metropolitan City approved the development plan on October 6, 2003 as N in the Seoul Special Metropolitan City public notice.

C) Defendant SAB entered into a contract with AB Korea, an incorporated association, and completed the registration of ownership transfer in accordance with the confinement procedure as follows:

○ On January 23, 2007, an expropriation consultation contract was concluded with respect to the portion 7,444/19,923 out of the previous cadastral land, and on February 7, 2007, an ownership transfer registration on the ground of the above expropriation was made under the Seoul East East District Court receipt of the Songdong District Court registration office under the title 10028 (hereinafter referred to as "second ownership transfer registration").

○ On December 21, 2010, the remainder 12,479/19,923 shares was entered into a non-sale agreement with respect to the special agreement for repurchase and the registration of transfer of ownership based on the said sale (hereinafter referred to as "third-party transfer registration") was made on March 3, 201 by the same registry office as the receipt of No. 12057 on March 3, 2011.

D) Since then, the former cadastral record of the said housing site development project zone was closed en bloc, and a new cadastral record was prepared. Accordingly, the former cadastral land and the land of the said zone were included in the land of Songpa-gu Seoul Metropolitan Government D, 46,537 square meters and 9,900 square meters for E school sites (hereinafter referred to as “new cadastral land”).

E) On July 4, 2011, Defendant SAB made registration of preservation of ownership (hereinafter referred to as “registration of preservation of ownership”) under Article 39320 of the Songdong District Court’s receipt of the Songdong District Court’s receipt of registration office with respect to new intellectual property on July 4, 201.

(iii)a specification of the assessment land;

Part 1 of the former cadastral land and new cadastral land is 33, and 1 of the items indicated in the attached Form No. 1 to 33, and 1, which are the 347.2m2m2, 207m2, 207m2, and 1,938m2,493m2, which is the sum of the 347m2m2, 207m2, and 1,938m2 (hereinafter “specific land”).

1) On May 13, 1958, the land category of the assessment land was changed to forest land. On November 30, 1977, the unit of area was converted into a square meter, and on March 1, 1996, the administrative district was changed to Hacheon-si.

At present, the second assessment land is 1,137 square meters of B forest land in Ycheon-si (hereinafter referred to as "second assessment land") without distinguishing it from before and after the change of the above indication.

2) As to the land under circumstances No. 2 on July 6, 1995, Defendant Republic of Korea completed the registration of preservation of ownership (hereinafter referred to as “registration of preservation of ownership of title No. 3”) by the Suwon District Court No. 17485 received from the Leecheon District Court.

(d) Inheritance relationship; and

I, on August 30, 195, died on August 30, 195, and P, a family heir, independently inherited property. And as P dies thereafter, the plaintiff et al. succeeded to P.

【Ground for recognition” without any dispute, Gap evidence Nos. 1 through 11, Eul evidence Nos. 1 through 5 (including Serial number), the result of the appraiser Q’s land survey, the R of this court, the results of the fact inquiry to the head of Songpa-gu, and the purport of the whole pleadings

2. Determination as to the claim for the land under the 1st situation

A. As to the cause of claim

1) Summary of the Plaintiff’s assertion

The Plaintiff’s father, under the Land Investigation Ordinance, was investigated into the land of the first instance, and the Plaintiff et al. succeeded to I’s property including the land of the first instance in succession. Moreover, the land of this case is recognized as having physical identity with the land of this case.

Therefore, registration of preservation of ownership on the land of this case is a registration of invalidation of cause, the presumption capacity of which is broken, and each registration of transfer of ownership, which has been made based on it, is also a registration invalid.

Accordingly, the Plaintiff, as an act of preserving jointly-owned properties relating to the instant land, seek against the Defendant Republic of Korea for the cancellation of the first ownership preservation registration, and the second and third ownership transfer registration, which has been completed based on the first ownership preservation registration and the first ownership preservation registration.

2) Determination

A) Whether I, the assessment title of the assessment of the land under Article 1 and I, the plaintiff, are the same person

I, the assessment title of the assessment of the assessment land, and I, the Plaintiff’s assistance division, are identical to one another’s name, and the fact that the address of the above assessment title and the legal domicile indicated in the Plaintiff’s assistance division I are consistent with the legal domicile indicated in the Plaintiff’s assistance division I is as seen earlier. In addition, according to the result of the inquiry on R in this Court, H may recognize the fact that the Plaintiff’s assistance division I and the person who assistance in the Plaintiff did not reside.

According to the above facts of recognition, it is reasonable to view that I and I as the same person, who is a person in charge of circumstance, and the plaintiff's assistance.

B) Whether division I of the Plaintiff is the owner of the land under the assessment of Section 1

(1) In order to seek cancellation of registration of preservation of ownership in another person’s name, as part of the exercise of the right to claim exclusion against infringement based on the ownership of real estate, the right to claim cancellation should be actively asserted and proved. If it is not acknowledged that there exists such right, even if the registration of preservation of ownership in another’s name is invalid, such claim may not be accepted. Therefore, if it is acknowledged that the situation titleholder disposes of the land to another person after the circumstance is established, the situation titleholder or his heir has no right to claim cancellation of the registration against the nominal owner, and such claim cannot be accepted (see, e.g., Supreme Court Decision 2004Da5044, Sept. 28, 2005). Meanwhile, even if the name was stated in the land cadastre column restored before the revision of the Cadastral Act on December 31, 1975, the presumption of right can not be acknowledged, and since the fact that there is no other entry in the distribution of farmland or distribution of farmland in the former farmland register and the changes in rights can not be acknowledged as necessary for repayment of 2080 documents.

(2) In full view of the following facts or circumstances revealed by Gap evidence Nos. 3-1 and Eul evidence Nos. 3-1 and the purport of the entire pleadings, i.e., the fact that the Republic of Korea is indicated as the ownership of the defendant in the old land cadastre as to the land of No. 1; ② the fact that the farmland land cadastre prepared with respect to the land of No. 1 is indicated as the defendant as the farmer; ③ there is no evidence to recognize that the situation of No. 1 was the owner of the land or the land of this case prior to the institution of the instant lawsuit; and ③ there is no evidence to prove that the owner of the land or his heir claimed the ownership of the land of this case, or claimed the compensation, after the circumstance transfer to another person

Therefore, since the plaintiff cannot be deemed to have succeeded to the ownership of the land of this case, there is no right to seek cancellation of registration of preservation of ownership of the land of this case to the plaintiff.

Ultimately, the plaintiff's above assertion is without merit.

B. As to the defendants' defense that "the acquisition by prescription for acquisition of the registry of the Republic of Korea's incorporated association" was completed (family judgment)

In addition, the above defenses of the defendants are examined.

(1) Summary of the defense

A. Since the completion of the registration of ownership transfer on the land under circumstances No. 1 on December 5, 1983, A.S. Korea, an incorporated association, has occupied the said land in good faith and without negligence for not less than 10 years, and thus, the acquisition by prescription of registry was completed, and accordingly, the Plaintiff et al. lost ownership.

2) Relevant legal principles

A person who has registered as an owner of a building site shall be deemed to have obtained possession by taking over the building site at the time of registration in common. Thus, it cannot be determined that the fact of possession cannot be recognized without any special circumstances upon recognizing the fact of ownership (see Supreme Court Decision 98Da20110, Jan. 16, 2001). In a case where the possessor bears the burden of proving the possessor’s negligence as a requirement for the prescription for acquisition of the registry, but where the possessor is the same person as the one holding the ownership on the registry, he/she shall be deemed to have acquired the real estate as the owner, barring special circumstances (see Supreme Court Decision 95Da22481, Oct. 12, 195; Supreme Court Decision 95Da22481, Oct. 12, 199). Even if the transfer registration of ownership by the person holding the title of the registration on the registry becomes null and void, if the last registrant submitted a defense for the acquisition by prescription, and thus, the person holding the title on the registration shall be dismissed.

C) Determination

(1) The following facts are as follows: (a) A corporation purchased the above land from the Defendant Republic of Korea, the title holder of the land under a special contract for repurchase on September 30, 1983; and (b) completed the registration of ownership transfer on December 5, 1983; and (c) under a special contract for expropriation with the Defendant SP and the former land, the ownership transfer of which was completed on February 7, 2007. On December 21, 2012, 479/19, 923 shares on the remaining portion of the land under a special contract for repurchase on September 10, 201, and the registration of ownership transfer was completed on December 5, 1983; and (b) under a special contract for expropriation with the Defendant SP and the entire purport of the entry and pleading as referred to in subparagraph (b) above, the registration of ownership transfer of the above land under subparagraph (6) may be recognized as having been completed on January 13, 1991 on the ground roof 1.

(2) According to the above facts, the following circumstances are revealed.

① As long as A.I. Korea, an incorporated association, newly constructs a building on the former cadastral land, it may be deemed that it occupied the said land. Even if it did not construct a new building as above, it is reasonable to deem that it was occupied upon delivery insofar as it purchased the said land and completed the registration of ownership transfer.

(2) As long as the possession of the said corporation is recognized, the said corporation shall be presumed to have occupied in good faith, peace, and public performance with its own intent (see Article 197(1) of the Civil Act).

(3) The defendant Republic of Korea who sold the land in the first condition to ASEAN Korea, an incorporated association, is the registrant of the above land and the seller is the same, and it is reasonable to deem that the above corporation had possession without negligence, barring any special circumstance.

In full view of the above facts and circumstances, ASEAN Korea, an incorporated association, acquired the ownership of the land under Article 1, on October 11, 2003, when the period of prescription for acquisition of the registry was expired, on December 5, 1993 or 2 October 11, 2003 after the expiration of 10 years from the date of registration of ownership transfer of the building in question.

As a result, since I or his heir's ownership is lost due to I or I's acquisition of ownership as above, the defendants' defense is justified.

3. Determination as to the claim for land No. 2

I, the assessment title of the assessment of the assessment land, and I and I, the plaintiff's assistance division, are identical to the Chinese name, and in Ischeon-si H, I and the plaintiff's assistance division did not reside, as seen earlier.

In addition, according to the shipbuilding General Directive A-2, according to the shipbuilding General Directive A-2, the address of I, who is the title holder of the assessment of the assessment land of the assessment land of the assessment land of the assessment land of the assessment land, appears to be H, Leecheon-gun, the same location as the above land. Ultimately, the address of the assessment titleholder and the legal domicile of the Plaintiff’s legal domicile

According to the above facts and circumstances, it is reasonable to view that I and I as the same person, who is a situation titleholder, and the plaintiff's assistance division, are the same.

Therefore, the land of the 2nd assessment is the ownership of the plaintiff et al. who acquired the land from the plaintiff Cho, and succeeded to the first in succession from the plaintiff et al. Accordingly, the registration of preservation of the third ownership in the name of the defendant et al. as to the land of the 3rd assessment was broken out.

Defendant Republic of Korea is obligated to perform the procedure for registration of cancellation of registration of cancellation of registration of ownership preservation in Article 3 to the Plaintiff, who is a co-owner of land in

4. Conclusion

Therefore, the plaintiff's claim against the defendant Republic of Korea is justified within the above scope of recognition, and the remaining claims against the above defendant and the claims against the defendant SP Corporation are without merit, and it is dismissed as per Disposition.