The presumption of registration under the Act on Special Measures for the Registration, etc. of Transfer of Real Estate Ownership based on a letter of guarantee prepared by a guarantor who fails to meet the residential requirements for ten

Article 5 of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Real Estate (Presidential Decree No. 9257, effective) requires that a person who has resided in the Dong and Dong where the real estate has been located continuously for ten years or longer due to the guarantor's basic qualification requirements. The reason why Article 5 of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Real Estate Ownership (Presidential Decree No. 9257) intends to commission a person who has resided in the Dong and Dong for a long time and has been aware of the substantial legal relationship concerning the real estate in such Dong and Dong as a guarantor so that the registration can be completed in conformity with the substantive legal relationship. Under the former Act on Special Measures for the Registration, etc. of Real Estate Ownership (Act No. 3159, effective), a person who claims real estate can be completed with a written confirmation by the competent authority along with a certificate prepared by three or more guarantors meeting the above qualification requirements, regardless of the intention of the person responsible for registration, and thus, the above basic qualification requirements as a guarantor are the most institutional structure prepared to secure the ownership registration completed under the above special measure.

Article 10 of the former Act on Special Measures for the Registration, etc. of Ownership Transfer (Act No. 3159, Lapse) and Article 5 of the Enforcement Decree of the same Act (Presidential Decree No. 9257, Lapse)

[Plaintiff-Appellant] Plaintiff 1 and 1131 (Gong1978, 10511) (Gong10511), 90Da11271 decided Mar. 27, 1991 (Gong1991, 1259), 91Da1475 decided Dec. 27, 1991 (Gong192, 71)

Plaintiff 1 and four others

Defendant 1 and four defendants, et al., Counsel for the defendant-appellant-appellee and one other

Jeonju District Court Decision 92Na3109 delivered on April 8, 1993

1. Of the lower judgment against the Plaintiffs against Defendant 1, Defendant 4, and Defendant 5, the part of the lower judgment against the Plaintiffs against Defendant 2 regarding the part pertaining to the size of 754 square meters in Jeonbuk-gun ( Address 1 omitted), 321 square meters in front of ( Address 2 omitted), and 303 square meters in forests and fields ( Address 3 omitted), shall be reversed, and the case concerning this part shall be remanded to the Jeonju District Court Panel Division.

2. The plaintiffs' appeals against defendant 3 and the remaining appeals against defendant 2 are dismissed.

3. The costs of appeal against the dismissed portion are assessed against the plaintiffs.

1. Judgment on the ground of appeal No. 1 by the plaintiffs

A. The court below rejected the plaintiffs' assertion that, with respect to the land set forth in paragraph (1) of this case No. 1, the transfer registration under defendant 1 was made pursuant to the Act on Special Measures for the Transfer of Real Estate Ownership (amended by Act No. 3159 of Dec. 6, 1978, referred to as the "Special Measures Act"), the transfer registration under defendant 2 was made based on this registration. Regarding the land set forth in paragraph (1) of this case, the transfer registration under the name of non-party 1 was made pursuant to the Act on Special Measures for the Transfer of Ownership, etc., and the transfer registration under the name of the defendant 4 was made pursuant to this registration, and the transfer registration under the name of the defendant 5 was made pursuant to the Act on Special Measures for the Transfer of Ownership, and that the non-party 2 commissioned as a guarantor under the Act on Special Measures for the Transfer of Ownership should continue to reside for more than 10 years, and that the non-party 2 did not meet the qualifications of the guarantor and the right to guarantee each of this case set forth within the above warranty period.

B. However, Article 5 of the Enforcement Decree of the Act on Special Measures for the Registration, etc. of Real Estate Ownership (amended by Presidential Decree No. 9257, Dec. 30, 1978) provides that "a person eligible to become a guarantor under the provisions of Article 10 (2) of the Act shall be a person who has resided continuously in the Ri/Dong at the location of real estate for not less than ten years and who does not fall under any of the following subparagraphs." Thus, the reason behind demanding that the person who has resided continuously in the Ri/Dong in the location of real estate for ten years or more due to the basic qualification requirements of the guarantor must be a new person who has resided continuously in the Dong/Dong at the location of real estate for a long time and has been aware of the substantial legal relationship of the real estate at the location of the Dong/Dong, so that the person who actually owns the real estate can be appointed as a guarantor and completed the registration in conformity with the substantive legal relationship. According to the Special Measures for the Registration of Real Estate Act, it shall be deemed that the transfer of ownership is not prepared under the basic qualification requirement for the registration.

C. Therefore, the court below should have judged that the presumption of each transfer of ownership in the name of Defendant 1, Nonparty 1, Defendant 5, etc., which was completed under the Act on Special Measures on the basis of the guarantee letter prepared by three guarantors including the above non-party 2, should have been reversed, and that the above non-party 2 did not lose the presumption of each of the above registrations completed based on the guarantee letter prepared by the above non-party 2. Thus, the court below erred by misapprehending the legal principles on the presumption of transfer of ownership, and as such, it is clear that the illegality affected the conclusion of the judgment, there is a ground to point this out.

2. Determination on the ground of appeal No. 2 (the grounds of appeal on additional appellate brief submitted subsequent to the expiration of the submission period are examined to the extent of supplement in case of supplemental appellate brief).

The court below held that the registration of transfer of ownership in Defendant 3, which was made under the Act on Special Measures for the Land of this case No. 2, was made based on the guarantee certificate signed and sealed by three persons including the above defendant as guarantor, and thus the cause is null and void. However, since the above defendant can be recognized that he purchased each land from the deceased non-party 3 on January 1, 1957 and received it, he occupied and managed until July 11, 1989 after he purchased it from the deceased non-party 3, the above defendant is presumed to have occupied each land in a peaceful and public performance with the intention to own the above land, and the above defendant acquired it by prescription at the latest on January 31, 197, since each transfer of ownership in the above defendant's name or each transfer of ownership in the name of Defendant 2, which was based on each of the above registrations, was made effective in accordance with the substantive legal relationship, the judgment of the court below is justified, and there is no error in the misapprehension of facts without properly examining the facts in violation of the rules of evidence.

3. Therefore, of the judgment of the court below, the part against Defendant 1, Defendant 4, and Defendant 5 among the part against the plaintiffs against the defendant 2 and the part against the plaintiffs against the defendant 2 as to the land of this case is reversed and remanded to the court below for a new trial and determination as to this part. The plaintiffs' appeal against the defendant 3 and the remaining appeal against the defendant 2 (as to the land of this case No. 2-Ra and E) are dismissed, and the costs of appeal against the dismissed part are assessed against the plaintiffs against the losing party. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Ahn Yong-sik (Presiding Justice)