[1] In the case of registration of invalidation for which registration of preservation of ownership is to be cancelled, whether a claim for cancellation can be accepted even if the right to claim cancellation is not recognized to the person who seeks cancellation (negative)

[2] Whether the presumption of right is recognized in the contents of farmland distribution-related documents and the entries in the old land cadastre restored under the former Cadastral Act (negative), and whether the contents of the above documents can be considered as the basis for fact-finding as to the alteration of right by taking into account other circumstances and the contents of the above documents

[1] Article 186 of the Civil Act, Article 65 of the Registration of Real Estate Act, Article 288 of the Civil Procedure Act / [2] Article 186 of the Civil Act, Article 202 of the Civil Procedure Act, Article 4 subparagraph 5 of the former Cadastral Act (wholly amended by Act No. 2801 of December 31, 1975) (see current Article 71 (1) 5 of the Act on Land Survey, Waterway Survey and Cadastral Records)

[1] [2] Supreme Court Decision 2008Da35128 decided Oct. 9, 2008 (Gong2008Ha, 1540) / [1] Supreme Court Decision 98Da17831 decided Feb. 26, 199 (Gong199Sang, 607) Supreme Court Decision 2004Da5004 decided Sept. 28, 2005 (Gong2005Ha, 1673) / [2] Supreme Court Decision 2009Da54652 decided Nov. 26, 2009; Supreme Court Decision 2009Da87508 decided Apr. 15, 201 (Gong2010Sang, 881) / [1] Supreme Court Decision 2004Da500439 decided Apr. 13, 2011; Supreme Court Decision 2004Da9319479 decided Apr. 19, 20194

Plaintiff 1 and four others (Attorney Kim Jong-hwan, Counsel for the plaintiff-appellant)

Korea

Suwon District Court Decision 201Na8608 decided December 23, 2011

Of the part of the judgment below against the defendant, the part concerning the 1,736m2 in Yangju-si ( Address 1 omitted) shall be reversed, and this part of the case shall be remanded to the Panel Division of the Government District Court. The remaining appeal shall be dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In order for the plaintiffs to seek cancellation of the registration of initial ownership completed in the name of the defendant against the defendant, the plaintiffs must first actively assert and prove that they have the title to claim cancellation thereof. If it is not recognized that the plaintiffs have such title, even if the registration of initial ownership preservation in the name of the defendant is invalid, the plaintiff's claim cannot be accepted (see Supreme Court Decision 2008Da35128, Oct. 9, 2008, etc.). Meanwhile, even if the documents related to farmland distribution, such as the gymmetric and the farmland land table, and the old land cadastre restored by the former Cadastral Act (amended by Act No. 2801, Dec. 31, 1975; hereinafter the same) are written as the owner of the land cadastre, the right presumption is not recognized. However, the contents of the above documents should be considered as evidence for fact-finding in full view of other circumstances and facts-finding (see, e.g., Supreme Court Decision 2009Da452656, Dec. 26, 206, 2009).

According to the evidence and records adopted by the court below, if the non-party 1 entered the land survey book at 834 square meters (hereinafter referred to as the "land before subdivision") in Yangju-si ( Address 2 omitted) before subdivision, and the non-party 2 and the non-party 3 (hereinafter referred to as the "non-party 2, etc.") were taxpayers with respect to the land before subdivision, and the fact that the non-party 2 and the non-party 3 (hereinafter referred to as the "non-party 2, etc.") entered the land at the same time as the non-party 4, the non-party 1, the owner of the above land, including the non-party 1, the non-party 2, who had been living in Yangju-gun-gun-gun, the non-party 6, the non-party 4, his father, and the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the land before subdivision, and the non-party 1, the non-party 2, the non-party 3, the land omitted.

In light of the above facts in light of the legal principles as seen earlier, there is sufficient room to view that the land before subdivision was transferred to a third party by Nonparty 1 or his heir, who is an assessment title in the Japanese colonial era.

Nevertheless, the court below rejected the defendant's assertion based on the premise that the land before subdivision was disposed of by the non-party 1 or his heir, who is the title holder of the circumstance, on the ground that it is difficult to recognize the fact that the land in this case was legally acquired by succession from the non-party 1 or his heir, solely based on the above detailed statement of geographical name, situation register, distribution farmland register, and old land cadastre, etc.

2. Meanwhile, among the judgment of the court below, the Defendant appealed on the portion relating to 29,058 square meters of forest land and 8,033 square meters of forest land in Yangju-si ( Address 4 omitted) and 29,058 square meters of forest land and 8,03 square meters of forest land. However, there is no ground for appeal on this part of the

3. Therefore, the part of the judgment of the court below against the defendant regarding the land of this case 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 by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)