(a) Contents, method and degree of proof that a person who asserts that he/she is a clan property must prove;

B. The case reversing the judgment of the court below which rejected the claim that a clan registered the forest land owned by the clan to the clan members for reasons of violation of the rules of evidence

A. A person who asserts that a certain property is a clan property shall assert and prove the reason why the property is set up as a clan property, but it does not necessarily require an explicit statement, and if it can be seen that a certain property contains the fact about the circumstance of establishment in the assertion and affiliation of a clan property, it is sufficient to presume the fact of establishment by asserting and proving indirect facts, etc.

B. The case reversing the judgment of the court below that rejected the claim that a clan owned the forest land was trusted in title to the titleholder of the clan for reasons of violation of the rules of evidence

A. Article 261 of the Civil Procedure Act, Article 103 of the Civil Act / [title trust]

A. Supreme Court Decision 91Da2946,2953 Decided October 10, 1989 (Gong1993Sang, 1664) (Gong1664) Decided June 14, 1991 (Gong1991, 1920) 92Da18146 Decided December 11, 1992 (Gong1993Sang, 4455)

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Kim Jong-sik, Counsel for defendant-appellee)

Defendant 1 and 7 Defendants, et al., Counsel for the defendant-appellant-appellee)

Busan High Court Decision 93Na11036 delivered on September 8, 1994

The judgment of the court below is reversed and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. The court below rejected the plaintiff's claim that the non-party 1 among the plaintiff's small land purchased for the purpose of using the plaintiff's grave as the plaintiff's small land. The non-party 2, who was the non-party 6's small land owned by the plaintiff's non-party 1, entrusted the name to the non-party 2, who was the deceased non-party 2, who was the plaintiff's tenant, and was subject to the above circumstances on May 31, 1918, the registration of ownership was completed in his name on March 28, 1929. Thus, the court below rejected the plaintiff's claim that the non-party 1, who was the non-party 6's small land owned by the plaintiff's non-party 1, who was the non-party 6's small land owned by the plaintiff's non-party 1 and the non-party 1, who was the non-party 7's small forest land owned by the plaintiff's small land owned by the plaintiff's non-party 1 and the plaintiff's small forest land.

2. The party asserting that a certain property is a clan property shall assert and prove the reason why the property is set up as a clan property. However, if it is not necessarily required to be explicitly stated, and if it can be deemed that a certain property contains facts about the process of establishment in the assertion and continued admission that it is a clan property, it shall be sufficient to presume the fact of establishment by asserting and proving indirect facts, etc. (see, e.g., Supreme Court Decisions 89∑ 1353, Oct. 10, 1989; 91Da2946, 2953, Jun. 14, 1991; 92Da18146, Dec. 11, 1992; 92Da18146, Dec. 14, 1992).

The court below also acknowledged Gap evidence Nos. 9-1 through 16, Gap evidence Nos. 32-1 through 3 (the part from 1950 to 1962 among the above part of the part of the part of the plaintiff's 's 's 's 's 's 's 's 's 's 's 's 's 's 's ''''' 's 's 's 's 's ''''' 's 's 's 's 1951 and 1952' 's 's 's 's 's 10,000 's 's 's 's 's 's 's 's '''''''''s 's 's 's 's 's 's 's 's 's ''s 's 's ''s '''''s 's '''s ''s 's ''''''s '''''''''s 's ''''''''s '.

In addition, as duly admitted by the court below, the fact that the second part of the Si-si was already established at the time of the purchase of the forest of this case (the original part and the present part of the body of inspection) is sufficient to be the ground for the purchase of the forest of this case. According to the records, even though the above non-party 8, who was the inheritee of this case, was disposing of all the house and the paddy field living at the time when he left the old land where the forest of this case is located at around 1962, while the above non-party 8, who was the inheritee of this case, was disposing of all the house and the paddy field that were living at around 1962, the forest of this case and the land (the address omitted but the land of this case was registered as the forest of this case on October 2, 191) were left without disposal, but the above land of this case was cultivated by the non-party 9, who was the administrator of the forest of this case, and the defendants presented it to the non-party 1's testimony to this effect.

Meanwhile, among the indirect facts cited by the court below, the defendants held the registration rights of the forest of this case. Since the above non-party 8, the decedent of this case, was entrusted with the preparation and keeping of documents among the documents, including the plaintiff's book, as a general affairs, it is difficult to view that the registration rights of the forest of this case were easily put into losses. Further, according to the records, the plaintiff's non-party 2's possession of another property (783 309 e.g., the non-party 2's punishment) in the plaintiff's book on July 22, 1913 can not be deemed as an indirect objection since the fact that the above non-party 2 acquired the forest of this case under the name of the above non-party 2, who was deprived of the forest of this case, cannot be deemed as belonging to this case, and since all other circumstances in the same time are private forests owned by the plaintiff at the same time, the plaintiff's possession of the forest of this case can not be deemed as an indirect objection to this case.

3. As seen earlier, there are significant indirect facts consistent with the Plaintiff’s assertion, and there are other indirect materials corresponding thereto. On the other hand, some of the indirect facts against the contrary, as seen earlier, which are difficult to be viewed as the indirect facts opposed thereto, and the remainder of such indirect facts alone are insufficient to impeachment the probative value of various indirect facts consistent with the above mentioned above. As such, even though it is unclear in the Plaintiff’s written lawsuit that the acquiring power of the forest of this case is unclear, there is a strong doubt whether the Plaintiff’s assertion to the effect that the forest of this case is owned by the Plaintiff’s written lawsuit is not easily rejected.

Therefore, the court below rejected the plaintiff's assertion for the reasons stated in its holding, without examining and determining other indirect facts consistent with the plaintiff's alleged facts, and even though it is difficult to see some of the indirect facts opposed to the plaintiff's statement as an indirect facts, it is difficult to avoid misconception of facts due to the violation of the rules of evidence or to avoid criticism that there is an error of law that affected the conclusion of the judgment by misunderstanding the legal principles on title trust or misunderstanding of the rules of evidence.

4. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)