[1] The preferential relationship between the effect of registration of initial ownership preservation, which has been made overlapping on the same real property

[2] In a case where a registration of preservation of ownership has been made in the name of a third party after the transfer to a special relative under the old Ordinance on the Special Afforestation of Joseon, whether the registration is presumed (negative)

[3] Details and degree of proof to reverse the presumption of legal effect of registration under the Act on Special Measures for the Restoration of and Preservation for Land Ownership and Non-Recoveryd within the Do Uniform Area

[4] The case reversing the judgment of the court below which acknowledged the presumption power of registration on the ground that the substantial contents of a guarantee certificate which served as the basis of registration of preservation of ownership in accordance with the Act on Special Measures for the Restoration, Registration, Preservation, etc. of Land Owner and Undeveloped Local Residents are proved to be true

[1] Where a registration of initial ownership has been completed in duplicate with different registered titleholders on the same real estate, the registration of initial ownership shall be null and void regardless of whether it conforms to the substantive legal relationship, unless the initial registration of initial ownership is null and void.

[2] If a registration of preservation of ownership has been made in the name of a third party with respect to the land owned by the State at the time of transfer under the previous Decree on the Special Domination of Shipbuilding (Ordinance No. 7 of April 5, 1926, the invalidation thereof), the presumption of the registration of preservation of ownership shall be deemed to have already been invalidated. In this case, the third party shall be deemed to have the duty to cancel the registration of invalidation without any cause, unless it is proved that he lawfully succeeded and acquired by the former owner.

[3] Even if it is proved that there is a separate person in the land for which registration of preservation of ownership has been made in accordance with the Act on Special Measures for Restoration, Registration, Preservation, etc. of Unclaimed Land within several different regions (Act No. 3627), the registration is completed in accordance with the lawful procedures stipulated in the same Act, and is presumed to be a registration consistent with the substantive legal relationship. As such, a party seeking the reversal of such presumption must assert and prove that a letter of guarantee, which forms the basis of the registration, was forged or falsely prepared, is not a lawful registration for other reasons. The degree of proof of the falsity of a letter of guarantee to reverse the presumption of registration is sufficient to prove that the substantive contents are not true, and it is not sufficient to prove that the judge's conviction is not sufficient.

[4] The case reversing the judgment of the court below which acknowledged the presumption power of registration on the ground that the substantial contents of a guarantee certificate which served as the basis of registration of preservation of ownership in accordance with the Act on Special Measures for the Restoration, Registration, Preservation, etc. of Land Owner and Undeveloped Local Residents (Act No. 3627) have been proved to be not true

[1] Article 186 of the Civil Act, Article 15 of the Registration of Real Estate Act / [2] Article 186 of the Civil Act, Article 2 of the former Decree on Special Cases Concerning the Restoration, Preservation, Registration, etc. of Land that is not yet owned by an owner in a river area / [3] Article 186 of the Civil Act, Article 15 of the former Act on Special Measures for the Restoration, Preservation, Registration, etc. of Land that is not yet owned by an owner in a river area / [4] Article 186 of the Civil Act, Article 15 of the former Act on Special Measures for the Restoration, Preservation and Registration, etc. of Land that is not owned by an owner in a river area, Article 3627 of the former Act

[1] [2] Supreme Court Decision 91Da20159 decided Oct. 11, 1991 (Gong1991, 2705) Supreme Court Decision 94Da23524 decided Apr. 28, 1995 (Gong1995Sang, 1960) / [1] Supreme Court en banc Decision 87Da2961, 87Da453 decided Nov. 27, 1990 (Gong1991, 178), Supreme Court Decision 94Da49274 decided Jun. 30, 195 (Gong1995Ha, 2552), Supreme Court Decision 93Da16789 decided Dec. 26, 1995 (Gong1969 decided Dec. 29, 295); Supreme Court Decision 209Da29789 decided Mar. 26, 2998)

Plaintiff (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Korea

Central Farmland Improvement Association and 3 others (Defendant, Law Firm Sejong, Attorney Nam-ho, Counsel for the defendant-appellant)

Seoul Private District Court Decision 93Na39057 delivered on January 12, 1995

Of the judgment of the court below against the plaintiff, the part of the judgment below against the plaintiff as to the land No. 6 in the annexed list of the same list No. 1 and No. 4 are reversed, and the part of the case is remanded to the Panel Division of the Seoul District Court. The remaining grounds of appeal by the plaintiff and the appeal by the defendant Republic of Korea are all dismissed. The costs of appeal by the plaintiff among the costs of appeal dismissed are assessed against the same defendant.

1. The grounds of appeal by Defendant Republic of Korea (to the extent of supplement in case of any statement in the briefs for which the submission period has elapsed) are examined.

The court below recognized the fact that the deceased non-party 1, who is the plaintiff, transferred the land from the government on December 24, 1992 based on the statement of No. 1 to No. 4 (each concession certificate), and ordered the defendant Republic of Korea to implement the procedure for the registration of ownership transfer on December 24, 192, it is justified that the court below ordered the defendant Republic of Korea to implement the procedure for the registration of ownership transfer, and the reasons for the lawsuit alone do not constitute the forgery of each of the above documentary evidence, and since the plaintiff lost ownership pursuant to Article 10 of the Addenda of the Civil Act due to the failure to complete the registration of ownership transfer after the enforcement of the new Civil Act, it does not lose the right to

2. The plaintiff's grounds of appeal are examined.

On the fifth ground

In light of the records of this case, although the court below acknowledged the fact that the above non-party 1 received the transfer of the land Nos. 1 through 4 of this case, it cannot be trusted, and there is no other evidence to acknowledge it, and dismissed the plaintiff's primary claim seeking the registration of ownership preservation and the cancellation of the transfer of ownership registration in the name of the defendants as to the same land under the premise that the plaintiff lost ownership pursuant to Article 10 of the Addenda of the Civil Act for a period of six years after the enforcement of the new Civil Act, since there is no other evidence to acknowledge it, and since there is no other evidence to prove it, it is just to dismiss the plaintiff's primary claim for the registration of ownership preservation and the transfer of ownership in the same name

On the fourth ground

If a registration of initial ownership has been completed in different ways with regard to the same real estate, unless the initial registration of initial ownership is null and void, the subsequent registration of initial ownership is null and void regardless of whether it conforms to the substantive legal relationship (see, e.g., Supreme Court Decisions 87Meu2961, 87Da453, Nov. 27, 1990; 92Da28297, Feb. 12, 1993).

However, according to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the registration of preservation of ownership in the name of the plaintiff as to the land in the same list No. 6 was made first, and thus, the registration of preservation of ownership in the name of the defendant Central Farmland Improvement Association (hereinafter the defendant association) should be deemed null and void, while the defendant association occupied it for 20 years since possession was presumed to have been possession, and since the possession was obtained with the presumption of autonomous possession, the registration of preservation of ownership in the name of the defendant association was made effective as long as the acquisition by prescription has been completed, it is obvious that the court below erred in the misapprehension of legal principles as to the validity of the overlapping registration as seen earlier, and the judgment of the court below which accepted the defendant's defense that the plaintiff's ground of appeal

With respect to the first and second points

According to the records of each of the above concession certificates, it is evident that the land of this case 1 through 4 is conceded under the Joseon Special Doctrine 2 (Ordinance No. 7 of April 5, 1926, hereinafter referred to as the concession order). Article 1 of the above concession decree provides that the State may transfer the State-owned forest with a special relation under the conditions as prescribed by this Decree to the relevant special relation. Article 2 provides that the State shall not be deemed to be the previous owner or heir of this case's land if it is deemed that the previous owner or heir of this case's land is not subject to the duty of preservation of ownership as the State-owned owner of this case's land under the name of No. 2 of this Decree, "No. 1 of this case," Article 19 of the "No. 2 of the Forestry Act, No. 9 of this case's 2 of this Decree, and it shall not be deemed that the previous owner or heir of this case's land was not subject to the duty of preservation of ownership.

However, the court below determined that there is no reason for the plaintiff's claim seeking cancellation of the registration of preservation of ownership by subrogation of the defendant Republic of Korea, as long as the state transferred the above non-party 1 (the land No. 1 of this case) to the above non-party 1, and the Republic of Korea, which is the former owner, does not actively deny the ownership transfer (the land No. 1 of this case), so long as the registration of preservation of ownership in the name of the defendant association cannot be presumed to be invalid, and therefore, the plaintiff's claim seeking cancellation of the registration of preservation of ownership by subrogation of the defendant Republic of Korea, the owner is without merit. The judgment of the court below is erroneous in the misapprehension of legal principles as to the presumption power

On the third ground for appeal

In cases where registration of preservation of ownership has been made in accordance with the Act on Special Measures for Restoration, Registration, Preservation, etc. of Unclaimed Land (Act No. 3627, effective; hereinafter referred to as the "Special Act"), the registration shall be completed in accordance with the lawful procedures prescribed in the same Act, even if it is proved that there is another person to whom the relevant land was assessed. As such, a party who seeks to reverse such presumption is presumed to have been registered in accordance with the substantive legal relationship, must assert and prove that the letter of guarantee, which served as the basis for the relevant registration, was forged or falsely prepared, and that the degree of proof of the falsity of the letter of guarantee to reverse the presumption of registration, is sufficient to prove that the substantial contents of the certificate are not true, and that it does not require a judge's conviction (see, e.g., Supreme Court Decisions 93Da5383, Oct. 26, 1993; 193Da138160, Oct. 21, 1994).

However, according to the reasoning of the judgment below, the court below held that the plaintiff's claim for the registration of preservation of ownership and the cancellation of the registration of transfer of ownership under the above special provisions shall be completed with respect to the above non-party 4's land transferred by the State, and since the above non-party 1 completed the registration of preservation of ownership under the above special provisions, and the registration of preservation of ownership under the defendant 2 was completed with the false guarantee document, the plaintiff's preliminary claim for the registration and cancellation of the registration of transfer of ownership under the defendant 1's name shall not be concluded as the ownership of the Republic of Korea merely because the above state delivered the above non-party 1 (the land No. 4 of this case) on behalf of the true owner of the Republic of Korea, and even if so, the presumption of the registration of preservation of ownership is actively recognized with respect to the above non-party 4's land under the above special provisions, on behalf of the defendant who is the owner of the above land, the plaintiff's claim for the registration of preservation of ownership and the registration of transfer of ownership is without merit.

However, this decision of the court below is hard to accept in the following respects.

In light of the records of this case, Defendant 2 was registered by the letter of guarantee that he actually purchased from Nonparty 2 on March 28, 1940 and completed the registration of ownership preservation in his name. However, Nonparty 3, the guarantor, was present as a witness in this case at the time of his guarantee, and he was aware of whether the land No. 4 was in the past or the defendant purchased it, and it was believed and guaranteed that Nonparty 4, the same child of the same defendant, was his own land. Since there were too many persons who want to obtain a guarantee certificate at the time and obtain a registration, it was difficult to confirm the ownership relation of the land as one day because the guarantor was unable to do so. Thus, in this case, Nonparty 3, the guarantor, was believed to have affixed a seal only, and testified that he purchased the above land from Nonparty 2 or the above owner on January 1, 196 without presenting the reason for his guarantee certificate.

On the other hand, since the land of this case is located in the north bank of the public line, it was difficult for civilians to easily enter the private line until the 1970s, and the land of this case was a stone that was originally built of the upper stone, and it can be seen that the Defendant mobilized heavy equipment and performed an open answer construction work only after the time when the Defendant was issued a guarantee certificate. Thus, it is difficult to view that the above non-party 2, who claimed that the Defendant was the former owner, possessed the land of this case 4 in around 1966 on the date of the sale.

As such, it is unclear whether the defendant's acquisition process is unclear, and the guarantor also prepared a guarantee letter with the belief of only the end of the same defendant and without confirming the ownership relationship, and it is difficult to deem that the above non-party 2 occupied and cultivated the land of this case on the date of sale and purchase of the defendant's assertion that the former owner was the same, it shall be deemed that it has been proved to the extent that the substantial contents of the guarantee certificate, which served as the basis for registration of preservation of ownership in the name of the defendant, are not true. Thus, the presumption power of registration of preservation was reversed, and its presumption power cannot be actively recognized like the original

Ultimately, the court below determined that the above registration of ownership preservation and registration of ownership transfer in Defendant 1 based on the above registration of ownership transfer is lawful on the ground that the presumption power of registration of ownership preservation was recognized as to the land No. 4 of this case's land, which was completed by the court below, was erroneous in the misapprehension of legal principles as to the legitimate presumption power of registration of ownership preservation completed under the above special provisions, and such illegality affected the conclusion of the judgment. Accordingly, the ground for appeal pointing this out

3. On the other hand, the part concerning the conjunctive claim against Defendant Republic of Korea and Defendant Iron-gun regarding the land of this case concerning the third party of this case is also disputed by appeal, but this part of the ground of appeal is not submitted, and therefore, it is without merit.

4. Therefore, among the part against the plaintiff in the judgment of the court below, the part on the land of this case against the defendant association against the defendant association and the part on the conjunctive claim against the land of this case 1 and 4 against the defendant association and the defendant 2 and the defendant 1 are reversed, and that part of the case is remanded to the court below. The remaining appeal by the plaintiff and the appeal by the defendant Republic of Korea are all dismissed, and the costs of appeal as to the dismissal of appeal are assessed against the losing party.

Justices Kim Jong-soo (Presiding Justice)