Plaintiff 1-A et al., a litigation taking over the deceased Nonparty 1 (Attorney Park Jong-sik et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm One, Attorney Gu administration decoration)

December 11, 2009

Suwon District Court Decision 2006Gahap750 Decided May 27, 2009

1. All appeals by the plaintiffs and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

Of the lands listed in the separate sheet of land, the Defendant shall implement the procedure for the registration of ownership transfer for the respective 5/100 shares for Plaintiffs 1-A, 1-B, and 5/100 shares for each of the lands listed in the separate sheet of land, for each of them to Plaintiffs 2 (Ga), 3 (Gai omitted), 4, 5, 6, 7 (Gai omitted), 8, and 9 (Gai omitted), for each of them to Plaintiffs 1-B, for 10/100 shares, for 4/100 shares for 6/100 shares for each of them to Plaintiff 11.

2. Purport of appeal

A. The plaintiffs

The part against the plaintiffs in the judgment of the first instance shall be revoked. The defendant shall revoke the part against the plaintiffs in the judgment of the court of first instance among the lands listed in the 2, 5, 6, and 21 in the separate sheet of land, as to each of 5/100 shares to plaintiffs 1-A, 1-B among the lands listed in the 2, 5, 6, and 21 in the separate sheet of land, 10/10 shares to plaintiffs 2 (Gai omitted), 3 (Gai omitted), plaintiffs 4, 5, 6, 7 (Gai omitted), 8, and 9 (Gai omitted), 4/100 shares to plaintiffs 10, and 6/100 shares to plaintiffs 11.

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked, and all of the plaintiffs' claims corresponding thereto shall be dismissed.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by considering Gap evidence 1 through 10 (including branch numbers for those with serial numbers; hereinafter the same shall apply), Gap evidence 12 through 27, Gap evidence 29, 30, Eul evidence 14 through 18, Eul evidence 22, non-party 4, non-party 5 of the first instance trial witness, non-party 4, and non-party 5 of the court of first instance, the fact inquiry into the government market of the court of first instance, as a whole.

A. According to the Forest Survey Book concerning Geum-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-gun-ju-gun-gun-gun-gun-gun-si (hereinafter “the land before division of this case”), the term “state-owned land” means “state-owned land” on the left side under the left side of the “state-owned land”, “Min-gun” means “Min-gun”, “Min-gun” means “Min-gun-gun-gun”, “owner or relative” means “Min-gun-gun”, “Min-gun-gun-gun” means “Min-gun-gun-gun”, “Non-party 2 (i.e., omitted)” in the name column, and “Non-party 2 (i.e., the land register is omitted” in the remarks column.

B. Subsequent, the land before the instant partition was divided in accordance with the annexed land division sheet.

C. On April 2, 1913, Nonparty 2 died on July 12, 1936, the deceased non-party 6 (name △△△△△), the south of the deceased non-party 2 (name ○○○○○), and the non-party 3, the grandchildren of Non-party 6, succeeded to the deceased non-party 2's property solely by inheritance of Australia. The non-party 3 died on March 6, 1997; the non-party 3's wife 7 on May 3, 1997; the non-party 1, 8 and 2 (name ○○○○○); the plaintiff 3 (non-party omitted); the plaintiff 4, 5, 6, 7 (non-party 1 omitted); the plaintiff 8, and the non-party 9 (the non-party 3 and the non-party 1 and the non-party 3 were the only child of the plaintiff 1 and the non-party 1 and the plaintiff 1 and the non-party 1 and the non-party 2 were deceased 1 and 1 and 18.

D. With respect to each land listed in the list of annexed lands listed in paragraphs 1 and 9 (hereinafter referred to as "the land listed in paragraph (0)", the District Court received on August 12, 1986 and received on August 12, 1986, Nos. 2, 5, and 16954 received on December 24, 1976, and with respect to each land listed in paragraphs 3, 4, 7, 8, and 19, received on May 11, 1984 as the District Court No. 12759, received on May 11, 1984; No. 10 through 19808, received on August 3, 1981 as the District Court No. 1980, May 14, 17, 187; No. 5532, May 28, 198; and No. 5558, May 28, 2008.

2. The assertion and judgment

A. Determination on the cause of the claim

1) Whether the land prior to the division of this case was assessed against a private person

Article 19 of the Forestry Act (Act No. 1, Jan. 21, 1908) provides that "the owner of a forest in mountain shall report to the Ministry of Agriculture and Forestry within three years from the date of entry into force of this Act, along with a summary of the land and size of the forest in forest and mountainous districts, and if the owner fails to report within the specified period, all shall be deemed State-owned." However, Article 10 of the Forest Investigation Decree provides that "the forest land which is State-owned shall be owned by the Gu owner or his heir because it is not necessary to give an indication of the land under Article 19 of the Forest Act, and Article 79 of the Forest Investigation Decree provides that "the forest in forest shall be owned by the Gu owner or his heir," and the forest in forest and mountainous districts shall be deemed to be owned by the owner of the forest in the remarks column of Article 10 of the Forest Investigation Decree, and the address and address of the owner of the forest in the forest and mountainous districts shall be stated as "not having any public land" in the remarks column of this case.

2) Whether Nonparty 9, the name of the circumstances, and Nonparty 2 of the plaintiffs, are the same person

The above facts and the evidence revealed as follows. The names of Nonparty 9 and the deceased Nonparty 2 who are the names of the land before the division of this case are identical to the names of the deceased Nonparty 2, the deceased Nonparty 3 and the deceased Nonparty 10 who are the names of the circumstances before and after the division of this case. The situation of the above land is similar to the names of the situation names of the plaintiffs, and the living grounds of the deceased Nonparty 2, the deceased Nonparty 3 and the plaintiff 10 who are the plaintiffs, and the names of the deceased Nonparty 2 who are the deceased Nonparty 2 on the plaintiffs' satisfaction table are indicated as ○○○. However, according to the Jinju-dong newsletter, the situation of the land before the division of this case is described as ○○, and according to the fact that the name of the deceased Nonparty 9 and the deceased Nonparty 2 who are the plaintiffs are the same person, the status of the land before the division of this case was stated as ○○.

3) Whether each of the instant registrations of ownership preservation maintains the presumption of right

Unless there is a counter-proof that the situation has been changed by the adjudication, the person registered as the owner of the land investigation division or forest investigation division shall be presumed to have become final and conclusive. The person under the circumstance of the land shall acquire the land smoothly (see, e.g., Supreme Court Decision 98Da13686, Sept. 8, 198). Since the presumption of registration of ownership preservation on the land is broken if it is proved that there is a separate person under the circumstances, the registration is void unless the registered titleholder specifically asserts the fact of acquisition by succession, unless he proves the fact of acquisition by succession (see, e.g., Supreme Court Decision 2002Da43417, May 26, 2005), so long as the above non-party 2 was considered to have been under the circumstances of the land before the division, each of the shares in the defendant's name was destroyed by the 0-10 share ownership, 10-1, 30-1, 15-1, 4, and 18-1, respectively, the plaintiff's heir and 5-1-1, respectively.

4) Therefore, barring any special circumstance, the Defendant is obligated to implement the registration procedure for transfer of ownership on each of the Plaintiffs’ respective shares based on the above inheritance ratio among the lands listed in the separate sheet of land.

B. Judgment on the defendant's assertion

1) Determination on the assertion of property devolvingd

The defendant asserts to the purport that part of the land before the subdivision of this case was divided into Geum-gun, Geum-gun, Geum-gun, Geum-gun, Geum (number 2 omitted), Busan (number 5 omitted), and mountain (number 6 omitted), and that each of the above lands divided as above was owned by the Tuberculosis Prevention Council, Japanese organization, and that since each of the above lands divided as above belongs to the defendant under the nationalization decision on July 26, 1952 after the U.S. military administration acquired ownership, each of the above lands was actually made with respect to the same land as above, which belongs to the property, and therefore, it is registered in accordance with the substantive legal relationship.

Therefore, according to the statements in Eul 1 and 2 (including additional numbers), it can be recognized that each of the above forests is owned by Japan as of August 9, 1945, and since it is highly likely that each of the above forests is owned by Japan, and that each of the above forests is owned by the National Tuberculosis Prevention Association as of August 2, 194, and that each of the above forests is owned by the National Tuberculosis Prevention Association as of August 2, 194, and that each of the above land in the annexed list was owned by the National Tuberculosis Prevention Association as of August 27, 1956, and that each of the above land in the annexed list is owned by the National Tuberculosis Prevention Association as of August 27, 195, and that each of the above land is owned by the National Tuberculosis Prevention Association as of August 20, 200, and that each of the above land is owned by the National Tuberculosis Prevention Association as of August 24, 200.

2) Determination as to the assertion on acquisition of unregistered real estate

The defendant asserts that each registration of preservation of ownership in this case was completed after going through the procedures for the public announcement of non-owned real estate under Article 8 of the State Property Act, and therefore, the title holder of the forest land by the Forest Survey Division is an original acquisition of the pertinent land. Thus, if the forest survey division was prepared at least in accordance with the Forest Investigation Order and circumstances were given to the group, the title holder or his heir shall be the forest owner. Therefore, even if the State treated it as non-owned real estate and completed the registration as state property through the procedures under the State Property Act and subordinate statutes, it shall not be attributed to the State (see, e.g., Supreme Court Decisions 96Da53420, Apr. 25, 1997; 98Da59132, Feb. 23, 1999). Thus, the fact that the land prior to the division in this case was in the situation of the non-party 2, as seen earlier, the defendant's above assertion is without merit.

3) Determination on the assertion of requisitioned property

A) The Defendant asserts that the ownership of the land was acquired by making a decision to purchase requisitioned property under the Act on Special Measures for the Adjustment of Requisitioned Property, with respect to the land of the 16,463 square meters in Geum-dong, Geum-dong, Kuo-dong, the Government, which was the land prior to the subdivision of the land in each subparagraph of paragraphs 2, 5, and 6.

In full view of the overall purport of the statements and arguments by evidence Nos. 2-8 and Eul evidence Nos. 7-13, the defendant decided to purchase the above land in a unregistered state as the USF facility site. The defendant announced the purchase of the above land on October 23, 1973, such as Joseon Day, etc., and on November 10, 1973, decided to purchase the above land. On May 7, 1974, the defendant entrusted the purchase price of the above land with the registration of preservation of ownership of the above land after depositing the purchase price of the above land with the purchase price of the above land in the above land in the above amount of KRW 90,000,000, cash and 6,000,000, the defendant's assertion that the above land was divided into the above land under the name of the defendant under the title of No. 1695, Dec. 24, 1976.

B) As to this, the plaintiff asserts that the procedure of purchasing requisitioned property is invalid because the procedure of the defendant's purchase of requisitioned property was conducted by service by public notice and deposit of impossible land, although the defendant knew or could have known the creditor, so the decision to purchase requisitioned property by the Minister of National Defense under the Act on Special Measures for the Adjustment of Requisition property cannot be contested without cancellation of the disposition, unless the disposition is an administrative disposition, so long as the defect cannot be seen as null and void because it is a grave and apparent appearance, and it is an administrative disposition. Article 4 (2) of the former Act on Special Measures for the Adjustment of Requisition Property (Act No. 2346) provides that if the address, etc. of the person requisitioned cannot be known, the purchase procedure can be conducted by posting it on the notice at the Gu/Si/Eup/Myeon and publicly announcing it in daily newspapers, and the above premise that the defendant cannot be paid securities or cash to the person requisitioned, which is the deposit requirement under Article 13 of the above Act, is included in the case where the creditor cannot be known under Article 487 of the Civil Act, and the other reasons for the defendant's purchase without fault.

4) Determination on the assertion of prescriptive acquisition

A) The defendant asserts that the period of prescription for acquisition of each of the lands listed in paragraphs (1) and (19) has expired after the lapse of 10 years from the time of each registration of initial ownership, around August 13, 196, and around May 12, 1994 as to each of the lands listed in paragraphs (4), (7), and (8), and that the period of prescription for acquisition of each of the lands listed in paragraphs (3) and (19) has expired on May 12, 2004 after 20 years from the time of each registration of initial ownership was completed, and that the period of prescription for acquisition of each of the lands listed in paragraphs (10) and (19) has expired on August 3, 191 or around August 3, 201 as to each of the lands listed in paragraphs (10) through (13), around May 20, 198 or around May 20, 198;

B) First of all, in light of the purport of the entire pleadings and arguments as to the land set forth in paragraph (21) 21, the above loan agreement was renewed from January 1, 1986 to December 31, 1986, and the above loan agreement was concluded between the defendant 1,587 square meters of land set forth in subparagraph 21 and the above 1,587 square meters of land set forth in subparagraph 3 and the court of first instance to March 1, 1986 to December 31, 1991. Since the above loan agreement was concluded between the non-party 10 and the non-party 10 and the non-party 198 square meters of land, the defendant's assertion that the above loan agreement was renewed for 1,587 square meters of land set forth in subparagraph 21 to September 18, 191 as the loan agreement was concluded between the non-party 10 and the non-party 198 square meters of land.

C) Next, we examine the assertion of prescriptive acquisition on the remaining land except for land in paragraph (21).

In the case of the acquisition by prescription of a registry, it is necessary that there was no negligence in the commencement of possession, and the burden of proof is the claimant (see Supreme Court Decision 92Da30245, Nov. 13, 1992, etc.). The term "non-performance of negligence" means that the possessor is not negligent in believing that he is his own possession. The claimant for the acquisition by prescription of possession must prove that he has occupied for 20 years. In light of the above evidence Nos. 19, 22, 32, and 33, the whole purport of arguments or arguments in the above evidence Nos. 1, 10, 12, 13, 19, 20, 20 and 22, each land is currently being used as a road, 3, 4, 7, and 8, each land is currently used as a parking lot, and the land is currently used as a parking lot, 14, 16, 17, 16, 14, and 17, and 16.

3. Conclusion

Therefore, the plaintiffs' claims of this case are justified within the above scope of recognition, and the remaining claims are dismissed without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff and defendant's appeal are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Justices Cho Jae-dae (Presiding Justice)