[1] Whether the presumption of right to the former owner of land cadastre restored before the enforcement of the Cadastral Act as amended by Act No. 2801 of Dec. 31, 1975 (negative)

[2] In a case where it is not recognized that there is a title to request the Plaintiff to cancel the registration, the validity of the claim for cancellation against the holder of the invalid registration (negative)

[1] Even if the name of the owner is stated in the old land cadastre arbitrarily restored for administrative convenience without any legal basis before the enforcement of the Cadastral Act amended by Act No. 2801 of December 31, 1975, the matters about the owner cannot be recognized as the presumption of right.

[2] In order to seek cancellation of the registration of initial ownership completed in the name of the defendant against the defendant, the plaintiff must first actively assert and prove that the plaintiff had the title to claim cancellation, and if it is not acknowledged that the plaintiff has such title, the plaintiff's claim may not be accepted even if the registration of initial ownership preservation in the name of the defendant is invalid, unless it is acknowledged that the plaintiff has such title.

[1] Article 13 of the Cadastral Act / [2] Article 186 of the Civil Act, Article 261 of the Civil Procedure Act

[1] Supreme Court Decision 96Da17127, 17134 decided Jul. 30, 1996 (Gong1996Ha, 2654), Supreme Court Decision 96Da4808 decided Feb. 14, 1997 (Gong1997Sang, 768), Supreme Court Decision 98Da5708, 5715 decided Jul. 10, 1998 (Gong1998Ha, 2082) / [2] Supreme Court Decision 90Da1097 decided May 8, 1990 (Gong190, 1248) (Gong190, 19000, 1997) (Gong19917, 1999) decided May 22, 199; Supreme Court Decision 92Da36529 decided Feb. 26, 192)

Plaintiff (Attorney Yang Chang-soo, Counsel for plaintiff-appellant)

Korea

Seoul High Court Decision 97Na38642 delivered on March 20, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Before the enforcement of the Cadastral Act as amended by Act No. 2801 on December 31, 1975, even if the name of the owner was written on the old land cadastre voluntarily restored for the convenience of administration without any legal basis, the Supreme Court’s established view that the ownership of the owner cannot be recognized (see, e.g., Supreme Court Decisions 98Da5708, 5715, Jul. 10, 1998; 97Da37487, Nov. 28, 1997; 97Da8984, Jun. 27, 1997; 96Da4808, Feb. 14, 1997; 96Da43782, Dec. 23, 1996; 9Da3782, Aug. 28, 196).

The court below rejected the plaintiff's claim for confirmation of ownership ownership and cancellation of the defendant's name as to each of the real estate of this case on the ground that it was not sufficient to recognize that the ownership presumption can not be recognized in light of the provisions of Article 10 of the Enforcement Decree of the Cadastral Act, Article 6 of the Addenda, which provides that even if the owner's name is stated in the restored land cadastre, it cannot be registered without the real estate registry or final judgment, and the remaining evidence alone is not sufficient to recognize that the ownership presumption right was transferred from the non-party 2 or non-party 3, the circumstance of each of the real estate of this case to the non-party 1, or that there is no other evidence to prove that the content was not reliable and that there is no other evidence to prove otherwise.

In light of the records and the above opinion of the precedents, the above fact-finding and judgment of the court below are just and there is no violation of the legal principles, violation of the rules of evidence, violation of the precedents concerning the presumption power of land cadastre restored, violation of the law, violation of the duty of explanation, etc. as alleged in the grounds of appeal.

The precedents cited in the grounds of appeal may not serve as an appropriate precedent to invoke the instant case, unlike the instant case.

In addition, in order for the Plaintiff to seek cancellation of registration of preservation of ownership completed in the name of the Defendant for each of the instant real estate in the name of the Defendant, the Plaintiff must first assert and prove that the Plaintiff has the title to claim cancellation thereof, and if it is not recognized that the Plaintiff has such title, the Plaintiff’s claim may not be accepted even if the registration of preservation of ownership in the name of the Defendant was invalid (see, e.g., Supreme Court Decisions 89Meu1900, May 22, 1990; 917, May 8, 1990).

In the same purport, the lower court’s rejection of the Plaintiff’s claim for cancellation of registration on the ground that each of the instant real estate was owned by the Plaintiff is justifiable and not erroneous in the misapprehension of the legal doctrine of the Registration of Real Estate

All of the grounds of appeal cannot be accepted.

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)