[1] In a case where the appellate court made an exchange change in the claim, and the appellate court stated that "the plaintiff's appeal is dismissed on the order and reasons, even though it decided on the changed claim in the reasoning of the judgment," whether the plaintiff's appeal can be corrected "the plaintiff's appeal is dismissed" (affirmative)

[2] In the case where a registration number, order of registration, registration system (registration system), etc. is affixed on a sale certificate prepared pursuant to the Registration of Real Estate Act for real estate whose registration has been destroyed by the registry, and where the registration is affixed on the registry, whether such registration has been made (affirmative)

[1] In a case where the appellate court made an exchange change of claims in the appellate court, and stated that "the plaintiff's appeal is dismissed" in the text, even though the appellate court made a decision on the changed claim in the grounds of the judgment, it is obvious that the plaintiff's appeal is dismissed in the conclusion and the text of the reasons therefor, which stated that the plaintiff's appeal is dismissed in exchange for another plaintiff's claim should be dismissed in the appellate court. Thus, the appellate court may make a decision to correct the conclusion of the judgment and its reasoning.

[2] According to Articles 35(1) and 60(1) of the Registration of Real Estate Act, an application for registration shall be filed with a document attesting the grounds for registration. When the registration is completed, the registration number, the number of application forms, the date of registration number, the number of application copies, the order number, and the registration number (registration system) shall be stated in the document or duplicate of application, which proves the grounds for registration, and the registration shall be returned to the person entitled to registration by deceiving the seal of the registry office. Thus, if it is recognized that the registration number, the order of registration, the registration system, and the fact that the registry seal is affixed to the person entitled to registration under the above provision, it shall be deemed that the registration is submitted in a document attesting the grounds for registration at the time of the application for registration, and the registration is completed and the registration is returned to the person entitled to registration. Therefore, barring any special circumstance, it shall be recognized that the registration number of the entry and the registration in the document have been completed simultaneously.

[1] Articles 197(1), 235, 378, and 384 of the Civil Procedure Act / [2] Article 186 of the Civil Act, Article 187 of the Civil Procedure Act

[1] Supreme Court Decision 95Da36725 delivered on June 28, 1996 (Gong1996Ha, 2337), Supreme Court Decision 96Da25449 delivered on June 10, 1997 (Gong1997Ha, 2125)

Plaintiff

Korea

Seoul District Court Decision 97Na31655 delivered on April 7, 1998

The judgment below is reversed. The case is remanded to Seoul District Court Panel Division.

The grounds of appeal are examined.

On the first ground for appeal

According to the records, registration of preservation of ownership has been made in the name of the defendant with respect to the real estate in this case. The plaintiff acquired the real estate in this case owned by the deceased non-party 1 in the first instance court on behalf of the deceased's inheritors. The plaintiff sought confirmation on the ownership of the above deceased's inheritors, while seeking cancellation of the registration of preservation of ownership in the name of the defendant, and the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's transfer of the real estate in this case to the plaintiff. The court below changed the plaintiff's claim to seek confirmation on the ownership of the deceased non-party 3's heir and the deceased non-party 2's heir's claim to cancel the registration of preservation of ownership in the name of the defendant. The court below stated the changed claim to the purport of the judgment, and stated the changed claim without merit.

The plaintiff's amendment of the claim mentioned above is changed to exercise the right of the deceased non-party 2's heir on behalf of the deceased non-party 1's heir on the real estate of this case and the right to claim exclusion of interference based on the ownership held by the deceased non-party 2. Thus, the subject matter of the lawsuit before and after the alteration of the claim constitutes an exchange change, and therefore the court below should decide on the changed application form exchangedly. As seen earlier, the court below stated the changed application form as the purport of the claim and judged that the changed application form is without merit. Thus, it is obvious that the court below's decision to dismiss the plaintiff's appeal in the conclusion and text of the reason is erroneous expression that it would dismiss the changed claim of the plaintiff which is exchangedly changed in the court below, and therefore, it cannot be said that the court below made a decision to correct the judgment and the conclusion of the judgment, and there is no error in the misapprehension of legal principles

The grounds of appeal cannot be accepted.

On the second ground for appeal

According to the reasoning of the judgment below, the court below determined that the real estate of this case was owned by Nonparty 4 under the Land Investigation Order on June 30, 1914, and that the sale certificate was prepared to the effect that the non-party 5 sold the real estate of this case to the non-party 2 (the non-party 2 (the non-party 3's address omitted) 752, and that the plaintiff holds the above sale certificate, and that the registration was made in the name of the non-party 3 on June 30, 1953 on April 23, 1996 and the ownership transfer registration was made in the name of the plaintiff on April 23, 1996, the fact that the non-party 5 acquired the ownership of the real estate of this case by acquiring it in succession from the non-party 4 and transferred it to the non-party 2, thereby the non-party 2 acquired the ownership of the real estate of this case.

However, according to the records, the land cadastre and land cadastre of this case were destroyed and lost on July 1, 1968. But the register was not restored on April 30, 1996. According to Gap evidence No. 3 submitted as a copy, it was made on December 10, 1942 to the non-party 2 [the non-party 6]'s certificate of sale prepared on December 10, 1942, it is unclear whether the registration No. 9 was affixed and the seal No. 9 was affixed to the non-party 2. The court below's decision that the non-party 9 was destroyed and lost on the above real estate, and the registration No. 9 was submitted in writing to the non-party 2. The court below's decision that the registration No. 9 should be submitted to the non-party 3, the registration number of each real estate, and the registration No. 35 (1) and No. 60 (1) of the Real Estate Registration Act should be considered as a copy of the registration number.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Jae-hee (Presiding Justice)