[1] Whether a claim that reduced the main claim in quantity or qualitatively with respect to the same subject matter as the main claim constitutes a preliminary claim in a lawsuit (negative)

[2] In a case where a registration of ownership transfer is completed, but the cadastral record is not kept in the pertinent authority at the time of the registration of ownership transfer, whether the cadastral record was kept at the time of the registration of ownership transfer (affirmative), and in a case of a divided land, whether there exists a land cadastre and a cadastral map (affirmative in principle) / Whether the same applies to a case where the registration record, which was completed after the registration of ownership transfer, was destroyed, is completed (affirmative)

[3] In a case where only one parcel of land is restored to one parcel of land before subdivision while restoring the cadastral record destroyed by the competent authority in the cadastral record after the land was divided into several parcels of land and the cadastral record was fully destroyed, whether a lawsuit seeking confirmation of ownership or cancellation of transfer of ownership may be brought to the extent that the boundary of the land owned by the previous owner of the land divided may be divided into the cadastral record (affirmative)

[4] The meaning and scope of "a final and conclusive judgment" that can be asserted against neighboring land owners under Article 84 (3) of the Spatial Data Establishment and Management Act

[1] The conjunctive claim must be in a non-conformity with the main claim. Thus, the main claim is to reduce part of the main claim in quantity and quality with respect to the same subject matter as the main claim, and it cannot be said that the main claim is to be absorption into the main claim, and it cannot be said that the main claim is a preliminary claim in a lawsuit.

[2] In a case where the registration of ownership transfer is completed, it is reasonable to deem that the cadastral record was kept at the time of the registration of ownership transfer even in a case where the cadastral record of a parcel of land is not kept in the competent authority at the time of the registration of ownership transfer. Moreover, in order to divide a parcel of land, it is reasonable to deem that there exists the land cadastre and the cadastral map for a divided parcel of land exists, barring any special circumstance. The same should also apply to a case where the registration record for the transfer of ownership was destroyed and the registration of the restoration of a destroyed parcel of land was completed

[3] In a case where one parcel of land is divided into several lots of land and the cadastral record is entirely destroyed and the cadastral record is entirely destroyed, and the land is restored only to one parcel of land which was divided before the division without restoring the previous parcel of land, the former owner of each divided land may claim and exercise his/her ownership by filing a lawsuit seeking confirmation of ownership or cancellation of ownership transfer registration against a part of one parcel of land before the division, on the grounds that the boundary of the previous divided land, among one parcel of land before the division, is specified to the extent that the cadastral record can be divided into the cadastral record into the cadastral record.

[4] Article 84(1) of the Act on the Establishment, Management, etc. of Spatial Data provides that “If a landowner finds any error in the registered matters in the cadastral record, he/she may file an application for correction thereof with the competent cadastral authority,” and Paragraph (3) of the same Article provides that “in cases where the boundary of an adjacent land is changed due to a correction pursuant to paragraph (1), a consent from the owner of the adjacent land or a consent from the owner of the adjacent land is not obtained, a certified copy of a final and conclusive judgment capable of setting up against it shall be submitted to the competent cadastral authority.” Here, “a final and conclusive judgment” that may set up against an adjacent landowner refers to a judgment that specifies the parcel number of the land and sets up the scope of ownership or boundary against the owner of the adjacent land. In addition to a judgment that orders the landowner to make a statement of consent to a request for a correction of boundary, the adjudication of boundary, partition of co-owned property,

[1] Article 253 of the Civil Procedure Act / [2] Article 186 of the Civil Act, Article 2 subparag. 19, Article 31, Articles 64, 71, 72, and 79 of the Act on Land Survey, Waterway Survey and Cadastral Records / [4] Article 24 ( Deletion), 79 (current Deletion), and Article 80 (current Deletion) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201) / [3] Article 186 of the Civil Act, Article 2 subparag. 19, 31, 64, and 74 of the Act on Land Survey, Waterway Survey and Cadastral Records / [4] Article 84 (1) and (3) of the Act on Construction, Management, etc. of Spatial Data

[1] Supreme Court Decision 90Nu1120 delivered on May 28, 1991 (Gong1991, 1778), Supreme Court Decision 98Da61463 delivered on April 23, 199 (Gong199Sang, 1014) / [2] Supreme Court Decision 94Da23524 delivered on April 28, 1995 (Gong1995Sang, 1960), Supreme Court Decision 95Da14794 delivered on July 30, 1996 (Gong196Ha, 2630), Supreme Court Decision 95Da4764 delivered on September 9, 199 (Gong197Ha, 3023) / [3] Supreme Court Decision 94Da20829 delivered on April 28, 2014]

Plaintiff (Law Firm Seo, Attorneys Cho Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant

Chuncheon District Court Decision 2015Na5153 decided May 3, 2016

Of the part of the lower judgment’s claim for confirmation of ownership, the part on 500 square meters is reversed, and that part of the case is remanded to the Panel Division of the Chuncheon District Court. The remaining appeals are dismissed.

1. Determination ex officio on the form of the claim or consolidation and the subject of adjudication by this Court

A. Preliminary claim must be in a non-conformity with the main claim. Thus, a claim that reduces the main claim in quantity or quality and reduces the main claim in quantity and quality with respect to the same subject matter as the main claim cannot be deemed as a conjunctive claim in a lawsuit (see, e.g., Supreme Court Decisions 90Nu1120, May 28, 1991; 98Da61463, Apr. 23, 1999).

B. The grounds of the judgment below and the record of the instant case are as follows.

(1) On the fifth day for pleading of the lower judgment, the Plaintiff stated in the lower court’s fifth day for pleading the purport of the claim and the application for modification of the cause of the claim to the effect that “The Plaintiff primarily requests the confirmation of ownership of the land indicated in the attached appraisal map of the lower judgment (hereinafter “instant appraisal map”), the claim for the confirmation of ownership of the said portion’s land, and the request for removal of the fence located on the said part’s land, and the preliminary claim for the confirmation of ownership against 500 square meters among the land located within the cadastral map of the land located in the cadastral map of the said part’s land, and ⑤ the request for the consent to the request for correction

(2) The lower court dismissed all of the primary claims on the premise that the aforementioned claims were primary claims, and (4) above, and (5) above, the lower court rejected all of the conjunctive claims, and dismissed all of the conjunctive claims. The Plaintiff is dissatisfied with the aforementioned claims (4) and (5) by appeal.

(3) However, the claim is the cause of the claim that each of the lands listed in paragraphs (2) and (3) of the attached list of the lower judgment (hereinafter “instant land No. 2” and “instant third land”) owned by the Plaintiff, and that the appraisal of the instant land is located on the part of the 3.c. and 4.

(4) In addition, (5) The claim is filed with the purport that: (a) 500 square meters of the land part of the pertinent 2 and 3, which is the land owned by the Plaintiff, are the land Nos. 2 and 3 of the instant case, based on the cadastral map on the land owned by the Plaintiff, taking into account the fact that the size of the land indicated in the registration record of the instant 2 and 3 is 500 square meters in total (around 1,652 square meters) and is inconsistent with the said 3,792 square meters; (b) the said 500 square meters of the land part of the said 3 and 440 square meters of the said 2 and 500 square meters of land (the instant appraisal is also a map that is measured based on

C. Examining the above litigation in light of the legal principles as seen earlier, first of all, the above (4) claim for ownership confirmation is the same cause of claim as to the same object as the above (i) claim for ownership confirmation, but it is nothing more than the reduction of the quantitative part, and thus, it cannot be deemed that the above (i) claim for ownership confirmation was absorbed into the above (i) claim for ownership confirmation, and therefore, the appeal on this part is ultimately subject to objection to the above (500 square meters of the claim for ownership confirmation) of the judgment below.

⑤ The above statement by the doctor's consent does not coincide with the above ①'s claim for confirmation of ownership. Thus, it is a simple combination and it cannot be viewed as a preliminary combination.

Therefore, the subject of the judgment of this court is limited to the part on ① 500 square meters among the part on the claim for confirmation of ownership and the part on the claim for consent ⑤ which is simply combined.

2. Judgment on the grounds of appeal

A. The part demanding the confirmation of ownership

(1) If the registration of ownership transfer is completed with respect to a parcel of land, it is reasonable to deem that the relevant cadastral record was kept at the time of the registration of ownership transfer even in cases where the cadastral record of the said land is not kept in the competent authority at the present time. Moreover, in order to divide a parcel of land, it is reasonable to deem that there exists the land cadastre and the cadastral map for the divided parcel of land, barring any special circumstance (see, e.g., Supreme Court Decisions 94Da23524, Apr. 28, 1995; 95Da14794, Jul. 30, 196). This ought to be deemed to be the same in cases where the registration record for the transfer of ownership is destroyed and the registration of restoration is completed after the destruction of the registered record (see, e.g., Supreme Court Decision 95Da47664, Sept. 9, 197).

Meanwhile, even in a case where the land of one parcel is divided into several lots and registered in the cadastral record was entirely destroyed, and the cadastral record was restored to the land of one parcel which was divided before the division, while the competent authority in the cadastral record was destroyed and restored to the land of one parcel before the division, the former owner of each divided land may claim and exercise his ownership by filing a lawsuit seeking confirmation of ownership or cancellation of ownership transfer registration with respect to a part of the land of one parcel before subdivision, as it is specified to the extent that the boundary of the previous divided land, among the land of one parcel before the division, can be divided into the cadastral record into the cadastral record (see, e.g., Supreme Court Decision 2001Da20103, Sept. 24, 2002).

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following facts are revealed.

(A) There exists a separate registration record concerning the land listed in paragraph (1) of the attached list of the judgment below (hereinafter “instant land No. 1”) and the land Nos. 2 and 3 of this case, among which the registration record concerning the instant land No. 1 is “500 square meters,” and the “transfer registration due to the restoration of Nonparty 1’s name” is completed as of July 9, 1956. ② The registration record concerning the instant land No. 2 is “400 square meters,” and the “transfer registration due to the restoration of Nonparty 2’s name” was completed as of July 9, 1956. ③ The area of the registration record concerning the instant land No. 3 is “100 square meters,” and the “transfer registration was received under Nonparty 1’s name “the restoration of Nonparty 1’s name” as of July 9, 1956 and “the transfer registration was received under Nonparty 1525, May 31, 1954.”

(B) Meanwhile, from August 24, 1945, in the first time, in the Republic of Korea, Japan was located under North Korea’s custody from around August 24, 1945, and the registration record and cadastral record were entirely destroyed. The cadastral map restored and kept in the competent authority at the present time is only 3,511 square meters (1,062 square meters) prior to the beginning of Si/Gu, and there is no land land in the second and third cases. Since the old land cadastre was made on September 1, 197, the land cadastre exists only after it was made, and there is no land cadastre as to the second and third land in the instant case.

(C) The plaintiff is the only heir of the above non-party 2 who died on July 28, 1981, and the defendant purchased the land of this case on June 14, 2002 through a compulsory auction procedure for real estate auction at Chuncheon District Court Decision 2001Mo5482 and completed the registration of ownership transfer in its name on July 8, 2002.

(3) Examining these facts in light of the legal principles as seen earlier, barring any special circumstance, it is reasonable to view that the land (location omitted) in the Seocho-si was already partitioned into the land in the instant case Nos. 1, 2, and 3 before the registration record and the cadastral record were destroyed, and the land in the cadastral record was registered in the cadastral record and divided into three lots. Moreover, in the process of restoring the cadastral map destroyed by the competent authority in the cadastral record, it is reasonable to deem that the land was restored only to the land in the instant case, which was divided in the course of restoring the

Therefore, notwithstanding the above-mentioned cadastral map and land cadastre, the land Nos. 2 and 3 of this case is separate from the land No. 1 of this case, and its ownership is deemed inherited to the plaintiff from the above non-party 2, who is the registered titleholder. Thus, the plaintiff should be deemed to have specified the boundary of the land Nos. 2 and 3 of this case, which is divided from the land No. 2 and 3 of this case, in the cadastral map and land cadastre.

However, considering the size of the above 'C', 'divine', etc. measured by the entrustment of surveying and appraisal at the court of first instance and the court below, the relationship between the area of the 1, 2, and 3 land and the area of the 1, 2, and 3 of this case as indicated in the registration record, the boundary between specific boundaries and reality as a result of the entrustment of surveying and appraisal, and the testimony by Non-Party 4 of the first instance witness, etc., the land of this case appears to exist within the indication of the appraisal of this case, 3, and 2 and 3 of this case. Thus, the court below should have deliberated to specify the land of this case on the cadastral map of the 2 and 3 of this case by additionally confirming the location of any specific part of the 'C', 4, and 44, which are indicated in the registration record.

Nevertheless, the lower court rejected the Plaintiff’s claim for this part solely on the grounds that it is difficult to readily conclude that the land was divided into the land Nos. 1, 2, and 3 of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the presumption of the registration of restitution of loss and the specification of land, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

B. Part on the claim for consent

(1) Article 84(1) of the Spatial Data Establishment, Management, etc. Act (hereinafter “Spatial Data Act”) provides that “A landowner may file an application with the competent cadastral authority for rectification of any error found in the registered matters in the cadastral record.” Paragraph (3) of the same Article provides that “Where the boundary of an adjacent land is changed due to a correction pursuant to paragraph (1), a consent from the owner of the adjacent land or a final and conclusive judgment against the owner of the adjacent land shall be submitted to the competent cadastral authority, if the boundary of the adjacent land is not changed due to the correction pursuant to paragraph (1).” Here, “a final and conclusive judgment” which may oppose a neighboring landowner refers to a judgment which specifies the parcel number of the land and establishes the scope or boundary of ownership against the adjacent landowner based on the cadastral record. In addition to a judgment ordering a statement of consent to the request for rectification of boundary, including a judgment of boundary confirmation, a partition of co-owned property, a judgment of removal of the ground and a judgment of confirmation of ownership (see Supreme Court Decision 2012Da8798, May 24, 2016).

(2) In accordance with Article 84 of the Spatial Data Act, the Plaintiff filed a claim against the Defendant for a statement of consent to the application for correction on the ground that it is necessary to file an application for correction of the official cadastral record on the land at the beginning of the Si of the Si of the Si of the Si of

However, as seen earlier, the Plaintiff has already filed a claim against the Defendant for the confirmation of ownership that includes the scope of land ownership or the boundary thereof based on the cadastral record. In accordance with the above legal principles, the Plaintiff may file an application for the correction of the cadastral record even by judgment of confirmation of ownership. Thus, this part of the lawsuit claiming the statement of consent to the application for the correction is unlawful as there is no benefit of lawsuit.

Therefore, the judgment of the court below which dismissed this part of the lawsuit on the ground that it was unlawful is just in its conclusion, and contrary to the allegations in the grounds of appeal, it did not err by misapprehending the legal principles as to the interest in the lawsuit, thereby affecting the conclusion of the judgment, and as long as the court below rendered the above judgment, it cannot be deemed that the measures of the court below which dealt

3. Conclusion

Therefore, the part of the judgment below regarding the claim for ownership confirmation is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)