Plaintiff (Attorney Ro-Ba, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Seom, Attorneys Kim Jeon-jin et al., Counsel for the defendant-appellant)

April 21, 2004

Gwangju District Court Decision 2000Gadan12925 delivered on January 30, 2003

1. Of the judgment of the court of first instance, the part against the Defendants regarding real estate No. 2 listed in the separate sheet shall be revoked, and the Plaintiff’s claim corresponding to the revoked

2. All remaining appeals by the Defendants are dismissed.

3. The costs of lawsuit shall be ten minutes through the first and second trials, and such nine minutes shall be borne by the defendants, and the remainder shall be borne by the plaintiff.

1. Purport of claim

The Plaintiff

A. Of the real estate listed in the separate sheet Nos. 1 and 3, Defendant 1’s share as to each 3/9’s share, Defendant 2, 3, and 4’s share as to each 2/9’s share as to each 2/9’s share, the registration of transfer of ownership completed as No. 19781 of December 21, 1993 as to each 2

B. Of the 2 real estate listed in the same list, Defendant 1’s share in Defendant 2, Defendant 3, and Defendant 4’s share in Defendant 2, Defendant 3, and Defendant 4’s share in each of 2/9 shares in the same registry; and

C. Of the real estate listed in the same list Nos. 4 through 7, Defendant 1 shall implement each procedure for the cancellation of ownership transfer registration completed under No. 19777 on December 21, 1993 with respect to shares of 3/9, Defendants 2, 3, and 4 with respect to shares of 2/9, respectively.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiff's claims are dismissed.

1. Determination on this safety defense

The Defendants asserted to the effect that, on April 19, 2003, the Defendants concluded a sales contract with the Plaintiff to purchase each real estate listed in the separate sheet (hereinafter the same method; hereinafter the same shall apply) in 53,098,100 won, which is the amount equivalent to the officially assessed individual land price, and the Plaintiff agreed to withdraw the instant lawsuit. Thus, the Plaintiff’s lawsuit seeking the procedure for cancelling the ownership transfer registration of each of the instant real estate did not have any interest in the lawsuit. However, as examined later, it cannot be recognized that the Plaintiff and the Defendants concluded a sales contract as alleged by the Plaintiff and agreed to withdraw the instant lawsuit, and that the Plaintiff agreed to withdraw the instant lawsuit. Therefore, the Defendants’ aforementioned safety defense cannot be accepted.

2. Judgment on the merits

(a) Basic facts;

(1) The process of dividing each real estate of this case

(A) The 2nd three parts of the forest land (hereinafter “the forest land before the subdivision of this case”) was divided into ① 22,413 square meters of forest land and ② 436 square meters of forest land in Ycheon-si (Scheon-si omitted). As above, the 2nd real estate in this case was converted into a site on the same day (Scheon-si (Scheon-si omitted omitted) forest land and 436 square meters of forest land. The registration of division was completed on December 21, 1993; the registration of land category was completed on November 28, 1994; the registration of land category was completed on November 22, 1994); the 222,413 square meters of forest land and 413 square meters of forest after the subdivision was divided into the real estate of this case on April 4, 196 and the real estate of this case (the registration of land division was completed on April 13, 1996).

(B) Meanwhile, on May 3, 1994, the land No. 4 of this case and the land lot No. 1937 square meters in Socheon-si (Sacheon-si omitted) were divided into 1937 square meters in Socheon-si (Sacheon-si omitted). The land No. 4 of this case and the land lot No. 1937 square meters in Socheon-si (Sacheon-si omitted) divided into 5, 6, and 7 real estate on March 16, 1995, but the registration of division was not completed yet.

(2) Circumstances leading to the transfer of ownership of each real estate of this case

(A) The Plaintiff’s father, the Plaintiff’s father, purchased shares of 6,870/6,90 of the forest land before the instant subdivision and the answer answers before the instant subdivision. As to the shares of 6,870/6,900 of the forest land before the instant subdivision, the Plaintiff’s father, on January 15, 1973, completed the registration of ownership transfer in the name of Non-Party 1 and the Plaintiff’s joint name (as to the shares of 30/6,900 of the forest land before the instant subdivision, on August 7, 1975). As to the answer before the instant subdivision, the registration of ownership transfer was completed in the name of Non-Party 1 and Non-Party 3’s own co-ownership, who was the deceased Non-Party 3, on April 30, 1976.

(B) Accordingly, with respect to forest land of 22,413 square meters prior to the division into real estate Nos. 1 and 3 of this case, the deceased non-party 4 completed the registration of transfer due to the donation of August 7, 1975, No. 19781, No. 19781, Dec. 21, 1993, under the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 4502, Nov. 28, 1994; Act No. 20137, Mar. 4, 1982; Act No. 4795, Dec. 21, 1993; Act No. 4768, Apr. 30, 1976; Act No. 4557, Nov. 28, 1994; Act No. 4568, Apr. 30, 197>

(3) Inheritance relationship

(A) On July 31, 1991, the above non-party 1 died, and on April 24, 1997, at the Family Court of Japan and the deceased non-party 1’s property successors, the conciliation was concluded that both the deceased non-party 1’s inheritance share of domestic real estate including the instant real estate and the instant real estate were transferred to the Plaintiff and the non-party 5.

(B) On September 2, 2001, the above non-party 4 died on September 2, 2001, and became co-inheritors, Defendant 1, the spouse, and Defendant 2, 3, and 4, who are the children of the spouse.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 4, 7, 8, 10, 13, and 14 (including each number)

(b) Markets:

(1) The plaintiff's assertion and judgment

(A) Determination as to the second real estate of this case

The plaintiff, despite the fact that the deceased non-party 4 purchased the real estate of this case from the deceased non-party 1 and the plaintiff, etc., or acquired the ownership for other reasons, he prepared a false guarantee that the deceased non-party 4 purchased the real estate of this case from the deceased non-party 1 and the plaintiff, etc. under the Act on Special Measures for the Ownership of the Real Estate of this case and obtained a confirmation from the deceased non-party 4, and completed the registration of ownership transfer under the name of the deceased non-party 4 with respect to the real estate of this case. Thus, according to the false guarantee and confirmation, it is argued that the registration of ownership transfer under the name of the deceased non-party 4 should be completed as a completed registration without any reason. Thus, the plaintiff's testimony that part of the non-party 4's housing of this case was registered with the witness of the first instance court and the non-party 6 and the non-party 7's testimony to the non-party 1 and the non-party 2's remaining real estate of this case as the deceased non-party 1 and the witness of this case.

(B) Determination as to the real estate Nos. 1, 3, and 7 of this case

The above facts are as follows: Gap's Nos. 3, 6, 17, Gap's evidence Nos. 5-3, 5, 6, 7, 14, and Eul's evidence Nos. 1-7, part of Eul's evidence Nos. 1-8 (excluding those not trusted in the rear), and the defendant's testimony of non-party Nos. 7, 8, 4, 8, 8, 9, 4, 8, 8, 4, 4, 4, 5, 5, 5, 5, 5, 5, 14, and 1-7, 8, 8, 4, 5, 8, 4, 5, 500, 4, 5, 500, 500, 500, 500, 500, 500, 500, 50, 50, 50, 1, and 3).

(2) Determination as to the defendants' defense

(A) Determination as to the defense of prescriptive acquisition

1) The Defendants asserted that, inasmuch as the acquisition by prescription was completed by the deceased non-party 4 by occupying the real estate Nos. 1 and 3 as well as the answer prior to the division of this case in a peaceful and open manner with the intent of possession for at least 20 years, the registration of ownership transfer in the name of the deceased non-party 4 is valid in accordance with the substantive

2) First, it is insufficient to recognize the fact that the deceased non-party 4 occupied and used the real estate portion of the case Nos. 1 and 3 in excess of the real estate portion of the case Nos. 1 and 3, No. 8-1 to 3-4, Eul evidence Nos. 1 to 13-7, and part of the testimony of Non-party 6 and Non-party 7 in the first instance trial, beyond the real estate portion of the case No. 2, for not less than 20 years, and there is no other evidence to acknowledge it. Thus, the defendants' defense of the prescriptive acquisition of the real estate No. 1 and 3 of the case of this case is without merit.

3) Next, there is no dispute between the parties that the deceased non-party 4 cultivated and occupied the answer before the division of this case from around 1976. Thus, it is presumed that the deceased non-party 4 had possession of the answer before the division of this case in peace and public performance for not less than 20 years from that time. Meanwhile, according to the part of the evidence No. 1-8, the witness of the first instance court, non-party 7, and non-party 6's testimony (except for the portion not trusted after Non-party 6's testimony), the deceased non-party 4 shall pay the deceased non-party 3 with 2 math of rice each year from the deceased non-party 1, and it was recognized that only the cultivation of the answer before the division of this case was commenced, and it was contrary to the above evidence No. 13-7, the non-party 16, and the non-party 4's testimony to the above non-party 4 had no reason to believe that it did not have the right to defense before the division.

(B) Determination as to the defense of the conclusion of the sales contract dated April 19, 2003

The Defendants asserted that the Defendants purchased KRW 53,098,100, which is the officially assessed individual land price of each of the instant real estate from the Plaintiff on April 19, 2003, and that the Plaintiff agreed to withdraw the instant lawsuit. As such, the Defendants asserted that the registration of transfer of ownership in the name of Nos. 1, 3, and the deceased Non-Party 4 on the answer before the instant partition is effective in accordance with the substantive relationship, and thus, it is insufficient to recognize this only by the testimony of Non-Party 9 of the trial witness at the trial, and there is no other evidence to prove the fact that the Defendants concluded the sales contract of the Plaintiff’s assertion. Therefore, the Defendants’ defense is without merit.

3. Conclusion

Therefore, among the real estate Nos. 1 and 3 of this case, Defendant 1 is obligated to perform the procedure for registration of cancellation of the ownership transfer registration completed on December 21, 1993 with respect to each of 3/9 shares, Defendant 2, Kim Young-ho, and 4 with respect to each of 2/9 shares, and the part against the Defendants as to the real estate No. 2 of this case among the real estate No. 4 through 7 of this case, which was completed on December 21, 1993 by the Gwangju District Court Ycheon-cheon Branch Office of 19781, and Defendant 1 among the real estate No. 3/9 shares of this case, and Defendant 2, 3, and 4 with respect to each of 2/9 shares of this case, the plaintiff's claim of this case is justified within the above recognized scope, and it is improper to dismiss the remainder of the claim against the Defendants. Thus, the defendants of this case among the judgment of the court of first instance is revoked, and all of the remaining part of this case is dismissed.

[Attachment List omitted]

Judges Kim Byung-su (Presiding Judge)