In a case where the competent authority records the name of the owner on the land cadastre voluntarily restored before the enforcement of the Cadastral Act as of December 31, 1975, without any legal basis, whether the presumption of right can be recognized (negative), and in a case where the former entry on the land cadastre newly made after the enforcement of the amended Cadastral Act is transcribed as it is, whether there is a presumption of right as to the new owner of the land cadastre (negative)

In light of Article 10 of the Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8110 of May 7, 1976) and Article 6 of the Addenda of the former Cadastral Act (amended by Presidential Decree No. 2801 of the same Act, “the former Cadastral Act”) only after the whole amendment was enforced on December 31, 1975 (amended by Act No. 2801 of the same Act, “the former Cadastral Act”) provides that matters concerning the owner of the land shall not be registered for recovery without recourse to the real estate register or final judgment [Article 10 of the Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8110 of the same Act, May 7, 1976)], even if the name of the owner is written on the land register voluntarily restored for the convenience of taxation without any legal basis before the above amended Act enters into force, the right presumption cannot be recognized. In addition, if the entry of the previous owner’s column of land cadastre, as seen

Article 13 (see current Article 74 of the Act on Land Survey, Waterway Survey and Cadastral Records) of the former Cadastral Act (amended by Act No. 3810 of May 8, 1986), Article 10 (see current Article 61 of the Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records) of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8802 of December 31, 197), Article 6 of the Addenda (see current Article 61 of the Enforcement Decree of the Act on Land Survey, Waterway Survey and Cadastral Records).

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Han-deok, Attorneys Ansan-won et al., Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Cheong, Attorneys Park Jong-ki et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2012Na47240 Decided February 15, 2013

The part of the judgment of the court below concerning the land listed in the annexed Table No. 2 of the judgment below shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the land listed in attached Table 2 of the judgment below (hereinafter “instant land”).

In light of Article 10 of the Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 8110, May 7, 1976) and Article 6 of the Addenda of the former Cadastral Act (amended by Presidential Decree No. 8110, May 7, 1976) no registration of the owner of land shall be made without any legal basis after the enforcement of the former Cadastral Act (amended by Act No. 2801, Jan. 21, 1992; hereinafter “former Cadastral Act”), even if the name of the owner is written on the land cadastre arbitrarily restored for the convenience of taxation without any legal basis before the above amended Cadastral Act enters into force, the right presumption cannot be recognized (see, e.g., Supreme Court Decision 91Da6399, Jan. 21, 1992). Moreover, if the entry of the previous owner’s column for land cadastre, which is not recognized as the presumption of right has been changed, the new owner of land cadastre should also be deemed as nonexistent.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the following facts are revealed. ① From 1,532 Embri-ri (number 1 omitted) to 1,532, it appears that the road was divided into 28 square meters. The above (number 2 omitted) land owner is Nonparty 1 (number 2 omitted) and (number 3 omitted) land owner is Nonparty 2 (number 9 omitted). The above (number 1 omitted) land land cadastre 1 to 97, and the above (number 3 omitted) land cadastre 1 to 97, which was newly entered (number 1 omitted) land cadastre 1 to 1,532, and the above (number 1 omitted) land cadastre 1 to 97, which was newly entered (number 1 omitted) land cadastre 1 to 97, the above land cadastre 1 to 97, which was newly entered (number 1 to 4, 197, the above new land cadastre 1 to 97, which was enforced.)

Examining the legal principles as seen earlier in light of the aforementioned facts, it seems reasonable to deem that the entry of the owner’s column on the new land cadastre prepared after the enforcement of the amended Cadastral Act is merely a transfer of the entry on the old land cadastre as well as the previous land cadastre, barring any special circumstance, such as the confirmation of the matters concerning the owner of the real estate register or the court’s final judgment at the time of preparation of the new land cadastre, the competent authority arbitrarily restored the land cadastre from the Yangju Tax Office, without any legal basis, and the entry of the owner’s column on the old land cadastre relating to the said (number 5 omitted) as to the said (number 5 omitted), which was successively divided from the previous land cadastre, appears to have been changed to the entry of the owner’s column on the new land cadastre prepared after the enforcement of the amended Cadastral Act. Therefore, it is difficult to deem that the right presumption is recognized as well as the previous land cadastre

Nevertheless, the lower court rejected the Plaintiff’s claim for cancellation of the above registration of preservation of ownership in the name of the Defendant solely on the sole ground that the new land cadastre was made after the enforcement of the amended Cadastral Act, and solely on the ground that the capacity of presumption of right is recognized in the entry in the owner’s column, and accordingly, dismissed the Plaintiff’s claim for cancellation of the above registration of preservation of ownership in the name of the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the probative value of the land cadastre made before and after the enforcement

However, even if the land cadastre was restored for convenience prior to the enforcement of the Cadastral Act, there is no limitation to using it as data for fact-finding as to the change of rights, taking into account other circumstances. However, it appears that the land cadastre of the above (number 2 omitted) was restored even before the above subdivision and the previous (number 5 omitted) land cadastre were recorded as data for fact-finding on the (number 2 omitted) land, and that there was no possibility of changing the ownership of the above (number 2 omitted) land from the above (number 2 omitted), and there was no possibility that the owner would have been included as Nonparty 1 in the above (number 2 omitted) land cadastre before and after the above subdivision, and there was no possibility that there was a change in the ownership of the land (number 2 omitted), such as the previous land lot number 1 omitted, and there was no possibility that there was a change in the ownership of the land (number 4 omitted) before and after the above subdivision.

2. As to the remaining grounds of appeal

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just that the court below determined that the non-party 4, who is the title holder of circumstance, disposed of each land listed in the attached list Nos. 6, 8, 9, and 10 of the judgment below before the enforcement of the former Farmland Reform Act, and lost ownership, and there is no error of law such as misunderstanding

On the other hand, the Plaintiff filed an appeal as to the land specified in attached Table 7 of the lower judgment, but in relation thereto, no grounds of appeal are stated in the petition of appeal or the appellate brief.

3. Conclusion

Therefore, by the assent of all participating Justices, the part concerning the land of this case among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition.

Justices Kim Chang-suk (Presiding Justice)