Plaintiff (Law Firm Ha, Attorneys Kim Ha-in et al., Counsel for plaintiff-appellant)

Defendant (Attorney Kim Byung-hee, Counsel for the defendant-appellant)

April 12, 2016

Chuncheon District Court Decision 2013Kadan3097 Decided January 21, 2015

1.The judgment of the first instance, including a claim modified and added in the trial, shall be modified as follows:

A. The plaintiff's main claim is dismissed.

B. All of the plaintiff's conjunctive claims are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

Note 1) Claim

The judgment of the first instance shall be revoked.

The primary purport of the claim is to confirm that the appraisal of each land listed in the separate sheet is owned by the plaintiff and to remove fences located on the line that connects each point of 3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 37, 41, 36, 35, 34, 33, 32, 32, 31, and 35 of the separate sheet in sequence, and that the "Od" and "Od" collectively connect each point of 32,33, 34, and 35 of the separate sheet as to each land listed in the separate sheet.

Preliminary claim: The defendant confirms the existence of 500 square meters of each land listed in the separate sheet Nos. 2 and 3, which is owned by the plaintiff in the cadastral map expressing the land listed in the separate sheet Nos. 1 in the annexed sheet, and declares his/her intention of acceptance to correct the land cadastral map and land cadastre to be identical to the area stated in the annexed sheet Nos. 2 and 3, which is owned by the plaintiff.

1. Basic facts

A. There exists a separate register as to each real estate listed in the separate list. Among them, in the register as to the land listed in paragraph (1) of the attached list, ① “former 500 square meters” and “transfer registration under the restoration of Nonparty 1’s name” are completed in the column for title in the separate register as to the land listed in paragraph (1) of the attached list. ② In the register as to the land listed in paragraph (2) of the attached list, the registration of transfer was completed in the column for title as “former 400 square meters” and “former 15278 of receipt on July 9, 1956,” and “transfer registration under the restoration of Nonparty 2’s name” was completed in the column for title in the register as to the land listed in paragraph (3) of the attached list, the registration of transfer was completed in the column for title of the attached list as “former 100 square meters” and the title of Nonparty 1 under the title No. 15272, Jul. 9, 1956, Nonparty 19535-253.

B. As above, in the registry, there are three lots of land in the size of 500 square meters, 400 square meters, and 100 square meters as shown in the attached list, and there are different owners. However, in the cadastral map kept at the government office, ① there is only three thousand five hundred square meters (1,062 square meters) and (2) land and (3) land are nonexistent in the cadastral map kept at the government office, and ② land cadastre exists only for the above land (2 omitted) and there is no land cadastre as to (1,062 square meters) and (3),51 square meters (1,062 square meters) since the old land cadastre was prepared on September 1, 197, and there is no land cadastre as to (2) land and (3) land.

C. The Defendant: (a) awarded a bid on June 14, 2002 through the compulsory auction procedure (No. 2001) at the Chuncheon District Court, 5482, supra, as to the land indicated in the attached list No. 1; and (b) completed the registration of ownership transfer on July 8, 2002; and (c) at the above auction procedure, the auction court appraised the said land as the area on the land cadastre due to the difference between the area on the register (500 square meters) and the area on the land cadastre (1,062 square meters) and determined the minimum bid price based on the appraised value

D. After receiving a successful bid of land as above, the Defendant installed fences on the line connecting each point of the separate sheet Nos. 32,33,34,35.

[Ground of recognition] Unsatisfy, Gap evidence 1 through 7 (including paper numbers), Gap evidence 11 to 12, the purport of the whole pleadings

2. Judgment on the main claim changed from the trial

A. The plaintiff's assertion

Around January 5, 1953 after the deceased non-party 4 first consulted the deceased non-party 2, who was the father of the plaintiff with the sale of about 1,000 square meters among the land at the Seocho-si ( Address 1 omitted), the deceased non-party 4 divided the land into the ( Address 2 omitted) land and ( Address 3 omitted) land from the above land on January 5, 1953. As to the divided land as above, there was a subdivision registration in the deceased non-party 2. However, as to the above ( Address 2 omitted) land and ( Address 3 omitted), the land whose cadastral record was destroyed. However, the above land constitutes the "land whose cadastral record was destroyed". However, among the above land, the above land constitutes the remaining part excluding 500 square meters acquired by the defendant at the auction procedure. Accordingly, the defendant, as the inheritor of the deceased non-party 2, confirmed that the Plaintiff, the owner of each of the above land, owned the land with the aggregate of 1,792 square meters size, the size of the land attached to the plaintiff 334.

B. Determination

As seen in the above basic facts, three lots of land on the register are 1,00 square meters in total, but there are only one land on the cadastral map and land cadastre with an area of 1,062 square meters. Each land is 38 North Korea before the Korean War in 1950, and the register appears to have been prepared as a transfer registration by North Korea around 1956, and there is a possibility of ex post recovery from the cadastral map and land cadastre. However, in light of the fact that the register was prepared with different owners of three lots of land at the time of restoration around 1956, it is possible that three lots of land had already been divided into three lots of land at that time. However, it is difficult to conclude that only three lots of land and the land cadastral map exist as the boundary of each of the above three lots of land can be separated from the cadastral map without any ground, and it is difficult to conclude that only three lots of land and the land cadastral map exist as the boundary of each of the above three lots of land are different.

3. Judgment on the conjunctive claim added at the trial

A. The plaintiff's assertion

Even if it is difficult to specify the boundary and location of the Plaintiff’s land at 500 square meters and 500 square meters of the Defendant’s land in the cadastral map of the instant land, the fact that the Plaintiff’s land 500 square meters and 500 square meters of the Defendant’s land exists in the cadastral map of the instant land can be sufficiently recognized. In order to apply for the correction of the registered matters in the cadastral record to the competent cadastral authority pursuant to Article 84 of the Act on the Establishment, Management, etc. of Spatial Data, the authentic copy of a final and conclusive judgment against neighboring land owners shall be submitted to the competent cadastral authority. As such, the Defendant is obligated to confirm the existence of 50 square meters of each land indicated in attached Tables 2 and 3, which are owned by the Plaintiff in the cadastral map indicated in attached Tables 1 and to correct the cadastral map and land

B. Determination

The subject matter of a lawsuit must be specified specifically. Even according to the plaintiff's assertion, 500 square meters of the plaintiff's land and 500 square meters of the defendant's land are separate objects of real rights, and the boundary, location, and shape of the plaintiff's land that exists in the cadastral map about the defendant's land is not specified at all. Thus, simply seeking confirmation that there is 50 square meters of each land listed in the attached list 2 and 3, which is owned by the plaintiff in the cadastral map indicating the land listed in the attached list No. 1 cannot be a valid and appropriate means for resolving disputes between the parties. Thus, this part of the claim cannot be viewed as a case where there is a benefit in confirmation, or

In addition, the Plaintiff sought consent from the Defendant for the purpose of correcting the cadastral map and the land cadastre as claimed, but the cadastral map and the land cadastre are not simply specifying the area, but can be prepared only when the parcel number, the area, and the boundary of each land are determined. As such, it seems impossible to simply correct only the parcel number and the area without the boundary comparison as above. Thus, there is no benefit in legal action to seek consent.

4. Conclusion

Therefore, the plaintiff's primary claim changed in the trial of the court is dismissed as it is without merit, and all of the plaintiff's conjunctive claim added in the trial of the court is dismissed as it is unlawful, and it is so decided as per Disposition by the court of first instance, including the claim changed and added in the trial of the court of first instance.

[Attachment]

Judges Cho Jinam (Presiding Judge)

(1) In the first instance of trial, the Plaintiff newly identified the subject matter as indicated in the attached Form as to the claim for delivery and removal of the claimant, and changed the claim into the main claim, and subsequently added the conjunctive claim.