Plaintiff 1 and seven others (Attorney Realizationmo, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorneys Kim Jong-soo et al., Counsel for the defendant-appellant)

April 17, 2009

Chuncheon District Court Decision 2006Gadan6978 Decided May 21, 2008

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

With respect to Nonparty 1: (a) 123 square meters prior to the ○○○-ri, Gangwon-gun, Gangwon-do; (b) 1 omitted:

A. Defendant 3: (a) the transfer registration of ownership completed on November 25, 2005 by the District Court Youngcheon District Court Youngcheon Branch No. 14707;

B. Defendant 2: (a) the ownership transfer registration completed on November 23, 2005 under the receipt of No. 14544 of the same support;

C. Defendant 1: (a) the registration of ownership transfer completed on March 24, 2005 by the receipt No. 3465 of the same support; and (b) the registration of ownership transfer completed on July 26, 1989 by the receipt No. 6659 of the same support;

Each cancellation registration procedure shall be implemented.

2. Purport of appeal

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

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 4-1 through 5, Gap evidence 9, Gap evidence 11, and Eul evidence 12:

A. On January 23, 1963, Nonparty 1 completed the registration of preservation of ownership with respect to the land of 955 square meters (hereinafter “land before the instant subdivision”). Of the land before the instant subdivision, Nonparty 1 cultivated the part adjacent to the same Ri (hereinafter parcel number 3 omitted) as dry field, and 791 square meters (hereinafter parcel number 4 omitted) of the same Ri (hereinafter parcel number 4 omitted) and 529 square meters of the same Ri (hereinafter parcel number 5 omitted).

B. Nonparty 1 completed the registration of ownership transfer on the land prior to the instant partition to Nonparty 3 on December 30, 1981 by Youngcheon District Court No. 10856, which was received on December 30, 1981, for sale on December 26, 1981.

C. Nonparty 3 completed the registration of ownership transfer on July 26, 1989, No. 6659, which was received on July 26, 1989 with respect to the land prior to the instant partition, on July 7, 1989 (hereinafter “instant registration of transfer”).

D. On February 20, 1992, Nonparty 5 divided the portion 123 square meters which was cultivated as a paddy field from the land before the instant partition into 00 square meters (hereinafter “instant land”). On January 6, 1993, Nonparty 5 completed the subdivision registration, and completed the registration of transfer of ownership on the remaining 00 square meters (number 2 omitted) before the same day.

E. After that, on March 24, 2005, the same support was received on March 24, 2005, and the registration of ownership transfer was made on August 10, 1996 under Defendant 1’s name, Nonparty 5’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son’s son.

F. Meanwhile, Nonparty 2 died with Nonparty 1 and the remaining Plaintiffs, who were the wife on October 5, 198, as the owner of the same Ri, 791 square meters, adjacent to the land prior to the instant subdivision, which was 791 square meters.

2. The assertion and judgment

A. Summary of the plaintiffs' assertion

The deceased non-party 2, the deceased non-party 2, the deceased non-party 1, purchased the instant land from the non-party 1 in spring around 1968. At the time, the instant land was not partitioned from the same Ri (hereinafter referred to as parcel number 2 omitted) and the registration of ownership transfer was not completed. Non-party 1 sold to the non-party 3 only the part except the instant land among the land before the instant subdivision, and completed the registration of ownership transfer as to the entire land before the instant subdivision.

Therefore, since the registration of this case (1), (2), (3), and (4) as to the land of this case is invalid without any grounds for registration, in order to preserve the right to claim the ownership transfer registration of this case against the non-party 1, the defendants are obligated to cancel the above registration of each of the above transfer to the plaintiffs who seek the cancellation of the registration of transfer.

(b) Fact of recognition;

The following facts may be acknowledged based on the evidence No. 2, evidence No. 4-3, evidence No. 5, evidence No. 5, evidence No. 6, evidence No. 7-1, 2, evidence No. 8, evidence No. 8, evidence No. 17-3, and evidence No. 22, each of the testimony No. 1, 3, and non-party No. 7 of the witness of the first instance trial, the testimony of Non-party No. 8, and the testimony of Non-party No. 9 of the first instance trial.

(1) In spring around 1968, Nonparty 1 sold to the deceased Nonparty 2 the part 123 square meters of the land cultivated as the rice field among the land before the instant partition, but the deceased Nonparty 2 did not complete the registration of ownership transfer as to the said purchase due to the relationship not divided.

(2) On the other hand, around 1981, Nonparty 1 sold to Nonparty 3 the part cultivated as dry field among the land before the instant partition (the part excluding the instant land from the entire land) and completed the registration of ownership transfer as to the entire land before the instant partition due to the relationship not divided.

(3) On July 7, 1989, Nonparty 3 sold part of the land before the instant partition to Nonparty 4, which was cultivated as dry field. Nonparty 3 also sold the part of the land before the instant partition, which was designated by Nonparty 4 as to the entire land before the instant partition, and Nonparty 5, who was also designated by Nonparty 4, completed the instant transfer registration.

(4) The deceased non-party 2 cultivated the instant land from around 1968 to around 1992 in purchasing the instant land from the non-party 1. After the death of the non-party 2, the plaintiff 3 cultivated the instant land from around 1962, and thereafter, the plaintiff 3 delegated the management of the instant land to the non-party 10, 11, and 2, thereby leasing the instant land to the non-party 12 in turn, and the non-party 12 cultivated the instant land to the non-party 204.

C. Determination on this safety defense

(1) Defendant 1 and 2 asserts that the extinctive prescription of the claim for ownership transfer registration of the instant land against the deceased Nonparty 2 or the plaintiffs Nonparty 1 has expired after the lapse of 10 years from the date of purchase of the instant land by the deceased Nonparty 2, and that the instant lawsuit is unlawful due to the extinguishment of the preserved claim.

Therefore, if the purchaser of the real estate continues to possess the real estate for the purpose of sale, the extinctive prescription of the right to claim the transfer of ownership based on the sale is not in progress (see Supreme Court en banc Decision 98Da32175 delivered on March 18, 199, etc.). Accordingly, the deceased non-party 2 purchased the land of this case around 1968 and cultivated the land of this case until the time of death after delivery. The fact that the plaintiff 3 occupied and managed the land of this case until 2004 is as seen above. Thus, the extinctive prescription of the right to claim the transfer of ownership by the non-party 2 or the plaintiffs was not in progress. Thus, the above argument by the defendant 1 and 2 is without merit.

(2) Defendant 1 and 2 asserts to the effect that, between the deceased non-party 2 and the deceased non-party 2 who did not register the ownership transfer of the instant land, the non-party 1 sold the instant land twice to the non-party 3 and the ownership transfer registration was completed in the non-party 3, the deceased non-party 2’s right to claim the ownership transfer registration was impossible, and thus, the instant lawsuit is unlawful because the preserved

The facts that the instant land was not included in the land sold by Nonparty 1 to Nonparty 3 are as seen earlier. Therefore, the Defendants’ aforementioned assertion on a different premise is without merit without further review.

D. Determination on the merits

(1) Determination of the cause of the claim

According to the above facts, the non-party 1 and the non-party 3 are merely a sales contract for the remaining part of the land before the division of this case, i.e., the non-party 1 cultivated as dry field, and there is no means to conclude a sales contract for the land of this case. Thus, the registration of transfer of ownership for the land of this case, among the land before the division of this case, shall be null and void because it was done without a juristic act causing the cause. Thus, unless there are special circumstances, the non-party 1, who is the owner of this case, shall be liable to perform the procedure of registration of transfer of this case, the non-party 1, the non-party 2, the non-party 3, the non-party 1,

(2) Judgment on the defendants' assertion

(A) The Defendants asserted that the possession of the land in this case by Nonparty 1, 3, 5 and the Defendants had been continued, and the acquisition by prescription or possession of the registry was completed, and thus, the Defendants or Nonparty 5’s transfer registration is in accord with the substantive legal relationship. Thus, the possession of Nonparty 1, who is the owner of the land in this case, cannot be deemed as the possession that constitutes the requirement for the acquisition by prescription. As to the fact that Nonparty 3, 5 and the Defendants continuously occupied the land in this case from before 198, there is insufficient evidence to acknowledge it solely with the evidence Nos. 1 through 3 (including each number), and the testimony of Nonparty 13 and Nonparty 8, the witness in the first instance trial, and there is no other evidence to acknowledge it. Rather, Nonparty 3 occupied only the remaining dry field except the land in this case from among the land before the division in this case to the date on which the deceased Nonparty 2 purchased the land in this case, and there is no further need to examine the remaining part of the land in this case from August 18, 20, 1968.

(B) The Defendants asserted that the registration of transfer of ownership in the name of Nonparty 3 with respect to the instant land was made under the title trust agreement between Nonparty 1 and Nonparty 3, and Nonparty 1 cannot assert the invalidity of the title trust to the Defendants, a third party, or that the registration of transfer of ownership due to the instant land transaction between Nonparty 1 and Nonparty 3 is null and void as a false declaration of agreement. Nonparty 1 asserted that the above false declaration of agreement is null and void with respect to Defendant 3, a bona fide third party, and cannot seek the registration of cancellation of ownership transfer.

On the other hand, the plaintiffs asserted that the registration of transfer of ownership in Nonparty 3 with respect to the land of this case was null and void as the cause of the claim of this case was completed without any cause, or they do not claim the invalidity of the false conspiracy or the invalidity of the title trust. Therefore, the above assertion by the defendants is without merit without any further review.

3. Conclusion

Therefore, the plaintiffs, who are the deceased non-party 2's successors, accept all of the claims of this case against the defendants on behalf of the non-party 1, and the judgment of the court of first instance is justified with this conclusion. Therefore, the appeal by the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Cho Chang-sung (Presiding Judge) Contribution to the Immigration Act