[Defendant-Appellee] Plaintiff (Law Firm Changwon, Attorney Yellow-do, Counsel for defendant-appellee)

Defendant (Attorney Park Sang-hoon et al., Counsel for the defendant-appellant)

June 20, 2008

Changwon District Court Decision 2007Da8863, 2008Gadan4226 decided March 7, 2008

1. The part against the plaintiff concerning the part concerning the claim for ownership transfer registration among the part concerning the counterclaim against the judgment of the court of first instance shall be revoked, and the part concerning the claim for ownership transfer registration shall be dismissed.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3. Of the costs of lawsuit, the costs of lawsuit against a counterclaim shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

1. Purport of claim

The principal lawsuit: The plaintiff (Counterclaim defendant, hereinafter "the plaintiff"), the co-defendant of the first instance court, and the co-defendant of the Republic of Korea will implement the procedure for the cancellation of each registration of transfer of ownership completed by the Changwon District Court No. 14730, Jul. 19, 1963 with respect to each real estate listed in the separate sheet No. 1, which was completed by the Changwon District Court No. 64854, Sept. 2, 1998 with respect to each real estate listed in the separate sheet No. 1. 1.

Counterclaim: The plaintiff implements the registration procedure for the preservation of ownership completed by Changwon District Court No. 4957 of Jun. 9, 1942 and the registration procedure for cancellation of ownership transfer completed by No. 7752 of Nov. 2, 2006 to the defendant as to each real estate listed in the separate sheet, and implements the registration procedure for ownership transfer based on the completion of repayment on December 31, 1956.

2. Purport of appeal

The counterclaim of the judgment of the court of first instance shall be revoked, and the defendant's counterclaim corresponding to the above revoked part shall be dismissed.

1. Scope of the judgment of this court;

In the first instance court on each real estate listed in the separate sheet, the Plaintiff filed a claim for the principal suit against the registration of preservation of ownership in the name of co-defendant of the first instance court on each real estate listed in the separate sheet, and cancellation of the ownership transfer registration in the name of the Defendant on each real estate listed in the separate sheet No. 1. The Defendant filed a claim for a counterclaim against the Plaintiff on each registration of preservation of ownership in the name of Nonparty 4 and cancellation of the ownership transfer registration in the name of the Plaintiff on each real estate listed in the separate sheet, and on each registration of cancellation of the ownership transfer in the name of the Plaintiff, and on each registration of a counterclaim based on the completion of repayment. It is evident that only the Plaintiff filed

2. Basic facts

A. The 619 square meters (hereinafter “the land before the instant subdivision”) prior to the subdivision of Changwon-si, Changwon-si, North Korea, which was located in September 2, 1913, was registered in the name of Nonparty 2 (hereinafter “the first preservation registration”). On March 22, 1917, the registration of ownership transfer was completed in the name of Nonparty 2 (hereinafter “the first preservation registration”), and the registration of ownership transfer was completed in the name of Nonparty 3, who was the part of the Plaintiff, due to the sale on the same day.

B. After the deceased non-party 3 died on March 19, 1931, the registration of preservation of ownership (hereinafter “registration of preservation of No. 2 of this case”) was completed in the name of deceased non-party 4 (the fact that the registration was entered in △△, which was the name of the deceased non-party 3, on June 9, 1942, in the name of the deceased non-party 3 (the registration was entered in △, which was the name of the deceased non-party 3).

C. Meanwhile, the land prior to the instant subdivision was divided into 490 square meters (hereinafter “instant farmland”) prior to the Changwon-si, Changwon-si, Seoul, on December 19, 1946 pursuant to the plan for the installation of the subdivision, and 110 square meters for maintaining the said Ri (number 3 omitted), 19 square meters (number 4 omitted), and 110 square meters, respectively. As to the instant farmland on July 19, 1963, the registration of the preservation of ownership in the name of the co-defendant of the first instance trial in the name of the Republic of Korea (hereinafter “registration of the third preservation”).

D. Since December 31, 1969, the land category of the instant farmland was changed to the maintenance on December 31, 1969, and on June 11, 1990, the ownership transfer registration was completed from the Defendant in the name of the Republic of Korea on the ground that the land category was changed to a road (the subsequent land category was changed to a road; hereinafter referred to as “second land”) of 183 square meters for maintaining 1,437 square meters for maintaining 1,437 square meters (number 5 omitted) in Changwon-si, Changwon-si (hereinafter referred to as “the instant land 1”) and 183 square meters for the instant farmland. As to the instant land 1, based on the registration of the preservation of the instant land, the registration of the ownership transfer was completed from the Defendant in the name of the Republic of Korea on September 2, 1998.

E. Meanwhile, the land before the division was originally owned by the deceased non-party 4, the deceased non-party 4, who died on the part of the deceased non-party 4, and the deceased non-party 5, also succeeded to the land before the division by agreement on inherited property, on the ground that the plaintiff, the deceased non-party 5, was solely succeeded to the land before the division after the division of inherited property on September 22, 1986, the plaintiff completed the registration of transfer of ownership from the Changwon District Court as to the land Nos. 1 and 2 based on the preservation registration of the second case on November 2, 2006, No. 77552, Nov. 2, 2006, May 15, 1958, under the name of the plaintiff non-party 4.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6 (including paper numbers), Eul evidence 1, 2 (including paper numbers), Eul evidence 3, the purport of the whole pleadings

3. The allegations and judgment of the parties

A. The parties' assertion

The defendant asserts that the Republic of Korea purchased the farmland of this case from the original owner in accordance with the Farmland Reform Act, and distributed it to the deceased non-party 1, the father of the defendant, and thereafter, the defendant, the inheritor due to the death of non-party 1, completed repayment and acquired the ownership of the land of this case 1, 2. Thus, the plaintiff is obligated to implement the procedure for the registration of preservation of the land of this case which is null and void as duplicate registration and the procedure for the cancellation of ownership transfer registration of the plaintiff's name based thereon, and the plaintiff is obligated to implement the procedure for the registration of ownership transfer

The plaintiff asserts that the farmland in this case was distributed to the deceased non-party 1 in accordance with the Farmland Reform Act, but the deceased non-party 1 and the defendant failed to complete the repayment, which was returned to the Republic of Korea and included in the farmland to be registered as a state-owned, and that the ownership was reverted to the original owner after the completion of the third preservation registration in the name of the Republic of Korea.

B. Determination on the defendant's claim for transfer registration of ownership

According to Articles 15, 16, and 16-2 of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994, Article 2 of the Addenda to the Farmland Act, hereinafter “farmland Reform Act”), when the redemption due to distribution of the farmland purchased from the State is completed at the same time as the farmland Reform Act enters into force, the head of Si/Gu/Eup/Myeon shall register the ownership of the farmland in the name of the recipient directly. Thus, the State does not need to register the ownership of farmland in the name of the State when the State registers the ownership of farmland to a farmer of farmland, as well as the interim registration in the name of the owner at the time the Farmland Reform Act enters into force, and the person who acquires the ownership of the farmland distributed due to the completion of the redemption is satisfied by filing a registration for the transfer due to the completion of the redemption with the State (see Supreme Court Decisions 89Da34688, Dec. 11, 190; 831, 1984).

As to the instant case, even if Nonparty 1, the father of the Defendant, was distributed to the State and the Defendant completed the reimbursement of the farmland, as set forth in the reasoning of Paragraph (2) below, the Defendant’s claim against the State for the registration of transfer based on the completion of the reimbursement shall be deemed to have no legal interest in demanding the implementation of the procedure for the registration of transfer of ownership against the Plaintiff, the heir of the owner of the instant farmland, at the time of the completion of the reimbursement. Therefore, the Defendant’s counterclaim is unlawful.

C. Judgment as to the defendant's request for cancellation registration

(1) Whether the registration of preservation No. 2 of the instant case and the registration of transfer in the name of the Plaintiff based thereon is null and void

Where a registration of initial ownership has been completed because the registered titleholder is different with respect to the same real estate, the registration of initial ownership shall be null and void in light of the legal principles of one real estate registration form, even if the registration of initial ownership conforms to the substantive relationship, unless the registration of initial ownership is null and void.

As seen above, the registration of preservation of No. 2 of this case was completed after the registration of No. 1 of this case was completed with respect to the land before the partition of this case, and the registration of No. 2 of this case was completed under the deceased Non-party 4. As seen earlier, even if the defendant acquired ownership after the completion of the repayment with respect to the farmland of this case, the registration of No. 1 of this case completed before that completion cannot be deemed null and void. Thus, the registration of Preservation of No. 2 of this case was completed after the first registration of No. 1 of this case cannot be deemed null and void under the current Real Estate Registration Act, which adopts the first real estate registration principle. Accordingly, the registration of No. 2 of this case and the registration of the above preservation shall be deemed null and void.

(2) Whether the Defendant acquired the ownership of the land Nos. 1 and 2 of this case

Farmland except for those stipulated in Article 6 of the State-owned or Farmland Reform Act is naturally purchased at the same time as the promulgation of the Farmland Reform Act and the acquisition of ownership by the State as an original acquisition does not require a registration as an requisite for setting up against the original acquisition, and a person who has completed the redemption with farmland distributed from the State acquires a real right to real estate and has not completed the registration (see Supreme Court Decisions 92Da28297, Feb. 12, 1993; 91Da4973, May 14, 1991, etc.).

We examine whether the Defendant completed the repayment of the farmland in this case, since the farmland in this case was purchased from the State due to the implementation of the Farmland Reform Act and the land was distributed to the deceased non-party 1, the father of the Defendant, and the state appears to have no dispute between the parties.

을가 제3호증의 1 내지 4, 을가 제5 내지 9호증, 을가 제12호증의 1 내지 5, 을나 제1호증의 각 기재 및 제1심 법원의 경상남도에 대한 사실조회결과에 의하여 인정되는 다음과 같은 사정 즉, ① 망 소외 1 및 피고에 대한 상환대장(을가 제3호증의 1, 을가 제5호증)에는 수배자로 망 소외 1 및 피고의 이름이, 수배농지로 이 사건 농지와 창원시 북면 외산리 (지번 6 생략) 외 4필지가, 이 사건 농지에 대한 총상환액으로 대맥(대맥, 보리) 2.30석[인( , 벼)으로 환산한 수량 1.80석], 위 외산리 (지번 6 생략) 외 4필지에 대한 총상환액으로 인 16.89석, 합계 인 18.69석이 각 기재되어 있는 점, ② 위 상환대장에는 상환기간, 상환내역, 상환완료 여부, 상환증서의 발급 여부에 대한 기재가 없으나, 분배농지의 상환을 완료하여 적법하게 등기를 마친 사람들에 대하여 같은 시기에 작성된 것으로 보이는 상환증서(을가 제12호증의 1 내지 5)에도 그와 같은 기재는 없는 것으로 보이는 점, ③ 위 상환대장에 “수해상습지 포기재분배지”라는 문구가 기재되어 있으나, 한편 위 상환대장에는 이 사건 농지가 아닌 위 외산리 (지번 6 생략) 외 4필지에 대하여 “농림부령제79호에의하여제1451호로부터이기”라고 기재되어 있고, 상환증서번호 1451호는 소외 6에 대한 것으로 상환곡수납부(을가 제8호증)에는 소외 6이 상환곡 12.60의 상환을 포기한 것으로 기재되어 있으며, 다른 수배자들에 대한 상환대장(을가 제12호증의 1 내지 5)에도 상환을 포기한 사람의 상환대장에는 “농림부령제79호에의하여OOOO호에이기로삭제”라는 기재와 함께 해당 토지에는 주선이 부기되어 있고, 상환을 포기한 농지를 재분배받은 사람의 상환대장에는 “농림부령제79호에의하여제OOOO호로부터이기”라고 기재되어 있으며, 상환을 포기한 사람과 이를 재분배받은 사람의 상환대장 모두에 “수해상습지 포기재분배지”라는 문구가 기재되어 있는 것으로 보아, 위 문구의 의미는 소외 6이 위 외산리 (지번 6 생략) 외 4필지에 대하여 상환을 포기하여 피고가 이를 재분배받은 것이라는 의미일 뿐 피고가 이 사건 농지의 상환을 포기하였다는 의미로 보이지 않는 점, ④ 상환곡수납부(을가 제3호증의 2, 을가 제6호증)에는 망 소외 1이 이 사건 농지에 대하여 1950년부터 1956년까지 상환을 완료한 것으로 기재되어 있고, 분배농지상환수납대장(을가 제3호증의 3, 을가 제7호증)에는 피고가 이 사건 농지와 위 외산리 (지번 6 생략) 외 4필지에 대하여 현곡으로 6.09, 금납으로 12.60을 납부하여 상환을 완료한 것으로 기재되어 있는 점, ⑤ 등기제증교부대장(을가 제3호증의 4, 을가 제9호증)에는 1963. 7. 19.경 피고에게 이 사건 농지 및 위 외산리 (지번 6 생략) 외 4필지에 대한 등기필증이 교부되어 피고가 이를 수령한 것으로 기재되어 있는 점, ⑥ 피고는 이 사건 농지에 관한 소유권이전등기를 하지 않고 있던 중, 뒤늦게 이 사건 제1 토지에 관한 상환증서의 재발급 및 소유권이전등기를 요구하였고 이에 국가는 피고에게 1954. 12. 31.자로 이 사건 농지에 관한 상환을 완료하였음을 확인하는 상환증서를 재발급한 것으로 보이는 점, ⑦ 피고는 이 사건 제2 토지가 도로로 이용되고 있어 이 사건 제1 토지에 대하여만 상환증서의 재발급 및 소유권이전등기를 요구하였던 것으로 보이는 점, ⑧ 피고에게 재발급된 상환증서(을나 제1호증)에는 상환곡수납부(을가 제3호증의 2, 을가 제6호증)의 기재와 달리 상환을 완료한 시기가 1954. 12. 31.로 기재되어 있으나 이는 농지개혁법상 상환기간이 5년이어서 그와 같이 기재한 것으로 보이고, 상환액도 18.69로 기재되어 있으나 이는 이 사건 농지를 포함한 위 외산리 (지번 6 생략) 외 4필지에 대한 총상환액을 기재한 것으로 보이는 점 등에 비추어 보면, 망 소외 1이 국가로부터 분배받은 이 사건 농지와 소외 6이 상환을 포기하여 재분배받은 위 외산리 (지번 6 생략) 외 4필지에 대하여 망 소외 1이 상환을 하던 중 1953. 3. 31. 사망한 이후 상속인인 피고가 1956년경 상환을 완료하였다고 봄이 상당하여 피고는 그 무렵 이 사건 농지에 대한 소유권을 취득하였다고 할 것이므로, 이 사건 제1, 2 토지에 대한 소유권은 피고에게 있다고 할 것이다.

(3) Sub-determination

Therefore, the Plaintiff, the title holder of the instant land No. 1 and 2, who is the deceased Nonparty 4’s heir, the title holder of the title holder of the instant land No. 2, is obligated to implement the registration procedure for cancellation of ownership transfer as to each of the real estate indicated in the separate sheet No. 1 and 2, as to the Defendant, the ownership holder of the instant land No. 2 and the Defendant, the ownership holder of the instant land, as indicated in the separate sheet No. 2, and the registration procedure for cancellation of ownership transfer completed by the Changwon District Court No. 4957 on June 9, 194

4. Conclusion

Therefore, the defendant's counterclaim, which falls under the part of the defendant's counterclaim claim for ownership transfer registration, shall be dismissed as unlawful and the claim for cancellation shall be accepted as reasonable, and the part against the plaintiff as to the claim for ownership transfer registration among the part concerning the counterclaim against the judgment of the court of first instance which has different conclusions, shall be revoked, and the defendant's counterclaim corresponding to the part concerning the cancellation shall be dismissed, and the remaining appeal by the plaintiff shall be dismissed.

[Attachment Omission of List of Real Estate]

Judges Han Hong Man (Presiding Judge)