Whether the sale and purchase of land, regardless of the actual boundary, is subject to the boundary and the land determined according to the cadastral record (affirmative in principle), / In a case where the party to the sale and purchase knowingly trades the actual boundary with the boundary of the site while he/she is aware that the actual boundary is different from the boundary on the cadastral record, whether it can be deemed that the sale and purchase of the land was made by specifying the object of sale

Article 3 of the former Cadastral Act (repealed by Article 2 of the Addenda to the Act on the Survey, Waterway Survey and Cadastral Records, Act No. 9774, Jun. 9, 2009) (see Article 64 of the current Act on the Establishment, Management, etc. of Spatial Data), Articles 212 and 563 of the Civil Act

Supreme Court Decision 90Da12977 Decided February 22, 1991 (Gong1991, 1050) Supreme Court Decision 92Da48918, 48925 Decided May 11, 1993 (Gong1993, 1678) Supreme Court Decision 2004Da71522, 71539 Decided March 24, 2005

Plaintiff

Defendant 1 and two others (Law Firm Gyeong, Attorneys Han Jae-chul et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2012Na3448 decided December 12, 2014

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Gwangju High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a parcel of land is registered as a parcel of land in the cadastral record under the Cadastral Act, the location, lot number, land category, land category, and boundary of the parcel of land are specified as this registration unless there are other special circumstances. The scope of ownership is determined by the boundary on the public record regardless of the actual boundary. Thus, unless there are special circumstances, such as where a party to a transaction does not intend to trade a parcel of land, the scope of ownership of which is determined by the public record, but an intention to trade a parcel of land as de facto boundary, and there is an intention to trade a parcel of land, the sale and purchase of which is determined by the boundary on the public record regardless of the actual boundary (see Supreme Court Decisions 90Da12977, Feb. 22, 1991; 90Da12977, Feb. 22, 1991; 2000Da42975, May 28, 2005; 2005Da4775, May 197, 2008).

2. In light of the following facts and circumstances, the lower court determined that it is reasonable to view that the Plaintiff and the Defendants, at the time of entering into the instant sales contract, deemed that the land, among each of the real estates located above each of the above lands, where trees trees are planted, was the subject matter of the instant sales contract, that the Plaintiff and the lower court recognized the lower boundary line of each of the real estate listed below the boundary line of each of the real estate listed below [Attachment 1] listed in [Attachment 2] Nos. 10 and 13 of the lower judgment as the outer boundary of

① Even after acquiring the ownership of the real estate No. 1 of this case, the Defendants did not grasp the exact boundary of the land through the survey, etc.

② Defendant 1’s husband Nonparty 1 presented a cadastral map to Nonparty 2, who arranged the instant sales contract prior to the month when the instant sales contract was concluded, and explained the subject matter of sale. The cadastral map does not indicate a cement packaging road (hereinafter “instant road”) that passes the north of the instant real estate 1, and thus, it could not be confirmed that the instant road was located in the cadastral map.

③ At that time, Nonparty 1 explained Nonparty 2, “from the point where the inner tree is planted, the lower part of the subject matter of the sale,” stating, “The dry field (the real estate listed in [Attachment 2 List 3 to 6] is omitted, and the entire part of the subject matter of the sale, from the dynasium to the bottom.”

④ In hearing the explanation of the location of the subject matter of sale from Nonparty 2, the Plaintiff entered into a sales contract of KRW 387.9 million on the subject matter of sale of the instant sales contract, setting forth KRW 16,500 per square year. At the time of entering into a sales contract of the instant real estate, the market price of KRW 117,458,90 is KRW 117,458,90, and the market price of each real estate listed in the separate sheet No. 2 of the lower judgment (hereinafter “instant real estate No. 2”) is KRW 111,584,

⑤ On December 2010, the day after the conclusion of the instant sales contract, the Plaintiff sought advice from the Goung-gun Office to verify the boundary of the land that he purchased. Nonparty 3, who was affiliated with the Goung-gun Office, visited the site around that time, called that the real estate of this case was irrelevant to the lower side of the road of this case. In light of such circumstances, the Plaintiff appears to have been aware that at least part of the real estate of this case 2 was included in the sales object.

④ At the time of entering into a contract, pine trees were planted in a certain manner in the form of Baduk as to each of the real estate listed in [Attachment 2] List 1, 2, 7, 8, 10, 11, 13, and 14 of the lower court’s attached Table 2, and a sprinkler, installed in the real estate No. 1 of this case, was connected to each of the real estate listed in Attached Tables 8, 10, and 11 of the lower judgment. However, each of the real estate listed in Attached Tables 3 through 6 and 9, 12, 15, and 16 of the lower court’s attached Table 2, which was used for dry field, was not planted.

7) Meanwhile, from around 2007 to the time of the instant sales contract, Nonparty 4 leased a dry field from Nonparty 1 to KRW 3 million per annum, and Nonparty 1 did not manage this part because Nonparty 1 also did not manage that part of the instant land because: (a) the real estate listed in [Attachment 2] Nos. 8, 10, and 11 of the lower judgment, located on the lower side of the instant road, was considered to be owned by Nonparty 1; (b) Nonparty 4 attempted to cultivate “the dry field (which appears to refer to each real estate listed in [Attachment 2] on the side where the reservoir is located.” However, Nonparty 4 tried to cultivate “the dry field (which appears to refer to each real estate listed in Table 1, 2, 13, and 14 of the [Attachment 2] on the side where the reservoir is located.”

【 Nonparty 6 purchased KRW 10 million from Nonparty 1 in 2008, which was planted part of Nonparty 2’s real estate of this case from Nonparty 1, and Nonparty 5 raised an objection that he would bring about the non-party 6. Nonparty 6 requested Nonparty 1 to reduce KRW 500,00 out of the non-party 2’s price, and was returned from Nonparty 1 and paid consolation money to Nonparty 5. If Nonparty 1 and Nonparty 6 known that the non-party 2’s portion out of the real estate of this case was owned by the non-party 1 and the non-party 6, the non-party 6 did not have paid the non-party 1 and the non-party 6 paid the non-party 2 the non-party 1 and the non-party 6 had been aware that the non-party 1 and the non-party 6 still owned the non-party 2’s real estate of this case at the time of the non-party 2’s ownership of the non-party 1.

① On the other hand, around January 3, 2011, Nonparty 1 received a claim from the Plaintiff that the land below the instant road is not entirely included in the instant sales contract, and on the cadastral map, Nonparty 1 responded to the purport that there was a transaction object under the instant road, and the cadastral map located under the military office was erroneous. Thereafter, Nonparty 1 and the Defendants, along with the Plaintiff, visited the military office over three times to view the cadastral map and resisted the original survey.

(10) The real estate owned by Nonparty 7 is the real estate listed in paragraph 7 of the attached Table 2 of the lower judgment, and Nonparty 2 testified in the first instance trial that “The real estate listed in Paragraph 7 of the attached Table 2 of the lower judgment is known to be owned by Nonparty 7, because it was located adjacent to the house (location omitted).” However, the real estate listed in Paragraph 7 of the attached Table 2 of the lower judgment is not adjacent to the above house, but adjacent to the land listed in Paragraph 1 of the attached Table 1 of the lower judgment purchased by the Plaintiff as a forest and land, and the land listed in Paragraph 9 of the attached Table 2 of the lower judgment of the lower court, which was immediately adjacent to the said house, is now planted, and is not planted, and Nonparty 2 appears to have testified by combining each real estate listed in paragraphs 7 and 9 of the attached Table 2 of the lower judgment.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

The Plaintiff and the Defendants, as the disposal document concerning the instant sales contract, have clearly stated that the instant real estate No. 1 was subject to sale, and the indication of the subject matter of sale is consistent with the number, category, and size of the certified copy of the registry concerning the instant real estate No. 1.

Therefore, barring special circumstances, such as that the Plaintiff and the Defendants, who are the parties to the instant sales contract, have purchased and sold the real estate No. 1 in which the lot number, land category, and area are specified by the sales contract and the certified copy of the registry, with intent to sell and purchase the land as actual boundary, it shall be deemed that the real estate No. 1 in this case, which was confirmed by the boundary and cadastral record of the cadastral record, regardless of the actual boundary, was the object of the instant sales contract, regardless of the boundary and cadastral record. While the Plaintiff and the Defendants knew that some of the real estate No. 2 in this case were located within the boundary of the real estate No. 1 in the cadastral record, it shall not be deemed that the Plaintiff and the Defendants concluded a sales contract with the knowledge that the

However, each of the circumstances based on the lower court’s reasoning is merely a mistake or mistake on the location or boundary of the instant 1 real estate which is the object of the instant sales contract, and thus, it cannot be recognized that the location and area of the instant 1 real estate is different from that of the instant 1 real estate, and that each of the real estate listed in [Attachment 2] List 1, 2, 7, 8, 10, 11, 13, and 14, different from that of the instant 1 real estate, is included in the subject matter of the instant sales contract. In addition, even after examining the record, there is no evidence to acknowledge special circumstances

Nevertheless, solely for the reasons indicated in its holding, the lower court recognized that the subject matter of the instant sales contract includes not only the first real estate in which the parcel number, land category, and area are specified by the sales contract or the copy of the register, but also the real estate listed in the attached table 1, 2, 7, 8, 10, 11, 13, and 14 of the lower judgment, and partly accepted the Plaintiff’s claim on the premise thereof. In so doing, the lower court erred by misapprehending the legal doctrine on the probative value of the subject matter of the sales contract and the disposal document.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal as to the scope of liability for damages, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Park Sang-ok (Presiding Justice)