[1] The meaning of a false letter of guarantee or a written confirmation to reverse the presumption of completed registration under the former Act on Special Measures for the Registration of Ownership Transfer of Real Estate

[2] In a case where a person who completed a registration under the former Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate made an assertion different from that stated in a letter of guarantee or a certificate, whether the presumption of registration is broken

[3] The case holding that in light of the overall circumstances, such as the fact that a guarantor under the former Act on Special Measures for the Registration, etc. of Transfer of Real Estate beliefing only the words of a registered titleholder without knowledge of the alteration of a right, and the preparation of a guarantee certificate, etc., it is reasonable to view that a guarantee certificate, which forms the basis for the registration of transfer of ownership under the said Act, has proved to the effect that its substantive contents are not true and correct, the presumption of

[1] The presumption of registration of ownership transfer or registration of transfer is presumed to have been completed pursuant to the former Act on Special Measures for the Registration, etc. of Ownership Transfer (Act No. 4502, Nov. 30, 1992). The presumption of registration of ownership transfer or registration of transfer is not reversed unless a letter of guarantee or confirmation prescribed by the said Act on Special Measures is false or forged, or there is no proof that the registration is not duly registered due to other reasons. Here, false letter of guarantee or confirmation refers to a letter of guarantee or confirmation that the substantial contents of the reason for the alteration of rights are inconsistent with the truth.

[2] Even if a person who completed registration pursuant to the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (Act No. 4502 of Nov. 30, 1992, the invalidation) claims that he/she acquired a right according to another cause of acquisition even if he/she recognizes the fact different from the fact as stated in a letter of guarantee or written confirmation, the presumption of registration shall be broken if it is proven that he/she cannot complete registration under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate in his/her claim, such as the case where he/she pays the date of the cause of acquisition at which it cannot be subject to the said Act, unless there are special circumstances, such as where it is obvious that he/she cannot complete the registration under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate or where it is obvious that the assertion itself is an instrument to the effect that the presumption of registration under the Act on Special Measures

[3] The case holding that in light of the overall circumstances, such as the fact that a guarantor under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership (Act No. 4502 of Nov. 30, 1992, effective) prepares and provides a certificate of trust and trust without knowing the alteration of a right to the registered titleholder, it is reasonable to view that a guarantee certificate, which served as the basis for the registration of transfer of ownership under the said Act, has proved to the extent that it is not true, that the presumption of its registration has been broken.

[1] Article 186 of the Civil Act, Articles 7 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate / [2] Article 186 of the Civil Act, Articles 7 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate / [3] Article 186 of the Civil Act, Articles 7 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate / [3] Articles 186 of the Civil Act, Articles 7 and 10 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 4502 of Nov. 30, 1992, effective)

[1] Supreme Court Decision 97Da17162, 17179 decided Jul. 25, 1997 (Gong1997Ha, 2711), Supreme Court Decision 97Da28735 decided Oct. 10, 1997 (Gong1997Ha, 3452), Supreme Court Decision 2000Da33775 decided Oct. 27, 200 (Gong200Ha, 2413), Supreme Court Decision 2001Da77352, 77369 decided Mar. 15, 200 (Gong2002Sang, 891) / [2] Supreme Court en banc Decision 200Da713889 decided Nov. 22, 2001; 200Da7378929 decided Oct. 27, 2005; 2005Da378295 decided Feb. 29, 2002

[Defendant-Appellee] Plaintiff 1 and 2 others

The deceased non-party 1’s lawsuit taking-off and three others (Law Firm Seodae, Attorneys Kim Jeon-dae et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2003Na2969 Decided May 19, 2004

Of the judgment of the court below, the part concerning the area of 436 square meters in leisure city (tax address omitted) shall be reversed, and that part of the case shall be remanded to the Panel Division of Gwangju District Court.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

A registration completed under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (Act No. 4502, effective. hereinafter "Special Measures Act") shall be presumed to be a registration consistent with the substantive legal relationship. The presumption of registration of ownership transfer or registration of transfer shall not be reversed unless a letter of guarantee or written confirmation prescribed under the Special Measures Act is proved to be false or forged, or not duly registered for other reasons. Here, false letter of guarantee or written confirmation refers to a letter of guarantee or written confirmation, the substantial contents of which are inconsistent with the truth (see Supreme Court Decision 200Da33775, Oct. 27, 200, etc.). It shall be assumed that registration cannot be presumed to be 10 if a person who completed registration pursuant to the Special Measures Act on Special Measures for the Registration of Ownership of Real Estate claims that he/she acquired a right according to another reason for acquisition, and it shall not be presumed to be 200 if he/she asserts that the registration is not a new one by the former Act on Special Measures for the Registration of Real Estate or 3.

The registration of transfer of ownership in the name of Nonparty 1, which was completed under the Act on Special Measures for the Ownership of Real Estate No. 2 (hereinafter “the instant site”), in the holding of the court below, is presumed to be a registration consistent with the substantive legal relationship. Thus, unlike the contents of the guarantee certificate written by the Defendants, unlike the contents of the certificate written by the Defendants, it cannot be said that although Nonparty 1, around 1973, received all real estate (hereinafter “each of the instant real estate”), including the instant land, from Nonparty 2 or at least, it is not clear that only the instant land was donated by Nonparty 2 around July 1974, it cannot be said that the presumption of registration is reversed.

However, the following circumstances revealed by the record, i.e., the guarantor who prepared the above guarantee certificate, stated that all of the guarantors were to believe and guarantee Nonparty 1 only without knowledge of the change of rights in the site of this case. Nonparty 1 was also investigated as a violation of the Act on Special Measures, and there was no donation of each of the real estate of this case including the site of this case from Nonparty 2. Furthermore, the defendants requested the court of first instance to sell the real estate of this case to the plaintiff under the premise that each of the real estate of this case was not donated from Nonparty 2 during the hearing of the court below, and the agreement (No. 2) submitted by Nonparty 1 to the court of first instance as evidence that it was donated the forest of this case before subdivision including the site of this case, which was presented as evidence to the effect that the transfer of ownership was later fabricated, and Nonparty 2 did not purchase the forest of this case by dividing it into the forest of this case in the name of Nonparty 1, 1973, and it is not doubtful that the above transfer of ownership was made to Nonparty 1 by dividing the forest of this case into the forest of this case.

Therefore, the court below did not reverse the presumption power of the above transfer of ownership, which affected the conclusion of the judgment by misunderstanding the legal principles on the presumption power of registration under the Act on Special Measures, and by misunderstanding the facts against the rules of evidence. The ground of appeal pointing this out is with merit.

2. As to the third ground for appeal

As seen above, since there is no room to accept the assertion of a substantive agreement based on the premise that the above donation is recognized, the court below erred by misapprehending the rules of evidence in finding that the above transfer of ownership in the name of Nonparty 1 accords with the substantive relationship, on the premise of the above donation. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the site of this case is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)