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(영문) 대법원 2009. 3. 12. 선고 2008다97935 판결
[소유권확인][공2009상,454]
Main Issues

In case where a person, who acquired ownership of real estate before the enforcement of the Civil Act and entered as an owner on the land cadastre under the former Act on Special Measures for the Registration, etc. of Ownership of General Farmland, fails to register the acquisition within six years from the enforcement date of the Civil Act, whether the ownership of such real estate is lost

Summary of Judgment

If the ownership of real estate was acquired before the enforcement of the Civil Act, but the registration of its acquisition was not made within six years from its enforcement, such ownership shall be lost pursuant to Article 10 of the Addenda of the Civil Act (amended by Act No. 1668 of Dec. 31, 1964). This does not change because it was written as the owner on the land cadastre under the former Act on Special Measures for the Registration, etc. of Ownership of Common Farmland (Act No. 1657 of Sept. 17, 1964).

[Reference Provisions]

Article 10 of the Addenda to the Civil Act (amended by Act No. 1668, Dec. 31, 1964); Article 10 of the former Act on Special Measures for the Registration, etc. of Ownership of General Farmland (amended by Act No. 1657, Sep. 17, 1964; Effective)

Plaintiff-Appellee

Plaintiff (Law Firm Busan, Attorneys Shin Si-hwan et al., Counsel for the plaintiff-appellant)

Defendant-Appellant

Korea

Judgment of the lower court

Suwon District Court Decision 2007Na10406 Decided November 27, 2008

Text

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the District Court.

Reasons

We examine the grounds of appeal.

Based on its adopted evidence, the court below held that the procedure for title change on the old land cadastre (No. 2) owned by Nonparty 3 in December 1964 pursuant to the former Act on Special Measures for the Registration, etc. of Ownership of Common Farmland (No. 1657, Sept. 17, 1964) was implemented. However, the court below did not have registered the acquisition of ownership in the name of Nonparty 3 until the present land was registered, since Nonparty 3 died on April 14, 2002, and then the Plaintiff acquired the land in this case from Nonparty 1, his father around 1937, and transferred the ownership to the deceased Nonparty 3, his father. Furthermore, the court below acknowledged the legal interest of the Plaintiff as to the land in this case.

However, if the ownership of real estate was acquired before the enforcement of the Civil Act, but the registration of its acquisition was not made within 6 years from its enforcement, the ownership shall be lost pursuant to Article 10 of the Addenda of the Civil Act (amended by Act No. 1668 of Dec. 31, 1964). This does not change because it was entered as the owner on the land cadastre under the Act on Special Measures. Therefore, as recognized by the court below in this case, if the registration of acquisition of ownership was not made in the future in the non-party 3 (the non-party 4, who is the wife of the non-party 3, testified that the non-party 3 did not register the ownership preservation of the land in this case because there was a lot of damages caused by the non-party 3, and even if he acquired the ownership at the time of its enforcement, he shall be deemed to have lost its ownership as of January 1, 196. Therefore, the plaintiff cannot acquire the ownership of the land in this case by inheritance.

Nevertheless, the judgment of the court below which accepted the claim for confirmation of ownership of this case on the ground that the plaintiff was inherited by the non-party 3 while there was no registration for acquisition of ownership in the non-party 3's future, is erroneous in the misapprehension of legal principles as to Article 10 of the Addenda of the Civil Code, thereby affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is 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 Kim Ji-hyung (Presiding Justice)

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