Plaintiff (Law Firm Song, Attorney Kim Jong-tae, Counsel for the plaintiff-appellant)

Republic of Korea (Law Firm Chungcheong, Attorney Park Jong-ju, Counsel for the plaintiff-appellant)

May 17, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant shall implement the procedure for registration of cancellation of ownership preservation, which was completed on July 21, 1994 with respect to the Plaintiff on the 108 square meters of △△-dong (number 5 omitted), the 99 square meters prior to the same (number 6 omitted), and the 34 square meters of the same (number 7 omitted) and the same (number 7 omitted) of the same (number 6 omitted), which was completed on July 21, 1994 by the Goyang-gu District District Court received by 425

1. Facts of recognition;

A. The forests and fields (number 1 omitted) in ○○○○○-gun, Goyang-gun, Gyeonggi-do (hereinafter “instant land”) were restored to the cadastral records around December 1959. On December 1, 1959, the forests and fields (number 3 omitted) and (number 4 omitted) were partitioned and registered in the land cadastre at 43 square meters in △△-ri (number 5 omitted), the former was registered in 30 square meters before △△-ri (number 6 omitted), and the latter was registered in the land cadastre at 30 square meters prior to △△-dong, △△-dong (number 5 omitted) and 142 square meters prior to the change of the area and administrative district (number 6 omitted), and the land number of 142 square meters in △△-dong (number 5 omitted), △△-dong, △△-dong, and the land number of 147 square meters in 147 square meters was divided into 57 square meters and 4747 square meters in the same case (number of 5.7).

B. In the Gu forest register of the mother land of this case, the △△△△△△ (Korean Chinese name 1 omitted) with the address in ○○○ (number 8 omitted) was transferred on August 21, 1940 (fire 15 years). The old land cadastre for the land of this case which was divided and converted from the above mother land is indicated as the owner, and the △△△△△△△ (Korean name 1 omitted) with the address in ○○○ (Korean name 1 omitted) with the ownership transfer on August 21, 1940. The old land cadastre for the land of this case is indicated as the ownership transfer on August 21, 1940.

C. On July 21, 1994, the defendant completed registration of preservation of ownership on the land of this case.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5 (including branch numbers in case of additional number), the purport of the whole pleadings

2. Determination

A. Summary of the plaintiff's assertion

△△△△△ (Korean name 1 omitted) is the same as Nonparty 1, who is the Plaintiff’s fleet, and since the old forest register and land cadastre concerning the instant land are indicated as the owner, the ownership of the said land belongs to △△△△△△ (Korean Chinese name 1 omitted). Therefore, the Defendant is obligated to implement the registration procedure for cancellation of each registration of ownership preservation, which was completed with respect to the said land, to the Plaintiff who succeeded to the ownership of the said land.

B. Determination

(1) In light of Article 10 of the Enforcement Decree of the Cadastral Act (Presidential Decree No. 8110 of May 7, 1976) and Article 6 of the Addenda of the former Cadastral Act (amended by Act No. 2801 of Dec. 31, 1975; hereinafter “amended Cadastral Act”) which prohibits registration of the owner of the land from being 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 May 7, 1976) since the enforcement of the former Cadastral Act (amended by Act No. 2801 of Dec. 31, 1975; hereinafter “amended Cadastral Act”), even if the name of the owner was written on the land register arbitrarily restored for the convenience of taxation without any legal basis prior to the enforcement of the above amended Cadastral Act, the right presumption cannot be recognized. In addition, if the entry of the owner’s column of the previous land register, as above, the new owner of land register should not be presumed (see Supreme Court Decision 200

(2) Examining the above legal principles in light of the above facts, it is difficult to view that the competent authority arbitrarily restored the forest land register to the original land without any legal basis, and the entry of the owner column on the old land cadastre as to the land of this case that was divided and registered after the enforcement of the amended Cadastral Act also changed to the entry of the owner column on the old land cadastre and the old land cadastre as it is at the time of the aforementioned restoration. Moreover, since the entry of the owner column on the new land cadastre (credit card form) prepared after the enforcement of the amended Cadastral Act also appears to have been changed to the entry on the old land cadastre and the old land cadastre as it is, barring special circumstances such as the confirmation of the owner by the real estate register or the court’s final judgment pursuant to Article 10 of the Enforcement Decree of the amended Cadastral Act at the time of the new land cadastre preparation, it is difficult to view that there is no presumption of rights as to the owner of the new land of this case as well as the old land cadastre. Therefore, there is no need to acknowledge any further evidence as the Plaintiff’s final owner’s allegation on the land of this case.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

Judges Jeong-il