Plaintiff 1 and 3 others (Law Firm Dong, Attorneys Cro-eroop et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Han, Attorney Lee Jin-hwan, Counsel for the defendant-appellant)

June 28, 2016

Daejeon District Court Decision 2014Da53662 Decided October 7, 2015

1. Of the judgment of the court of first instance, the part against Defendant 2 (Counter-party 2) shall be revoked.

2. Defendant 2 shall implement the procedure for the cancellation registration of each transfer of ownership, which was completed by the receipt No. 133 on January 6, 1992, with respect to each real estate listed in the separate sheet to the Plaintiffs.

3. The plaintiffs' appeal against the defendant 1 (the defendant) is dismissed in entirety.

4. The plaintiffs and defendant 2 bear the costs of appeal against defendant 2 and defendant 1 respectively.

The judgment of the first instance court is revoked, and the defendant 1 executes the procedure for the cancellation of each registration of ownership transfer (hereinafter referred to as the "registration of ownership transfer of this case") which was completed as the receipt No. 10904 on April 4, 2003 with respect to each real estate listed in the separate sheet (hereinafter referred to as the "each real estate of this case"), and the defendant 2 completed as the receipt No. 133 on January 6, 1992 with respect to each of the real estate of this case (hereinafter referred to as the "registration of ownership transfer of this case").

1. Basic facts

A. The Plaintiffs are the deceased Nonparty 1’s grandchildren, Defendant 1’s South-North Korea, and Defendant 2 are the wife of Defendant 1 and the Lee Dong-in relationship. The deceased Nonparty 1 died with the new wall around January 6, 1992.

B. Each real estate of this case was owned by the deceased non-party 1. The registration of ownership transfer of this case was completed under the name of the deceased non-party 1 through Defendant 2 on January 6, 1992 on the ground of a sales contract as of December 28, 1991. The registration of ownership transfer of this case was completed on April 4, 2003 under the name of Defendant 1 on the ground of a sales contract as of April 1, 2003.

C. Defendant 1 cultivated each of the instant real estate from before the deceased Nonparty 1 died with the deceased Nonparty 1. From January 6, 1992, Defendant 1 occupied each of the instant real estate and continued to possess a farming shed even from the deceased Nonparty 1’s death.

[Ground of recognition] Facts without dispute, Gap evidence 1 (including paper numbers; hereinafter the same shall apply) through 3, Eul evidence 1 through 2, the purport of the whole pleadings

2. Each party's assertion

A. The plaintiffs' assertion

The deceased non-party 1 did not enter into a sales contract with Defendant 2 on each of the instant real estate, and since it did not delegate the conclusion of a sales contract to Defendant 1, the registration of the transfer of the first ownership in this case is null and void, and the registration of the transfer of the second ownership in this case on the basis thereof is also null and void. In addition, the deceased non-party 1 died on January 6, 1992, and the registration of the transfer of the first ownership in this case completed on the same day is unlawful in this respect. Ultimately, the presumption of each of the above registrations of the transfer of ownership in this case has broken down.

B. The defendants' assertion

Although the registration of title transfer of this case was completed after the deceased defendant 1's death, the deceased non-party 1 and defendant 2 entered into an agreement that all of the real estate of this case shall be transferred to defendant 2 as the repayment of loan from the deceased non-party 1 to about 50 million won borrowed from defendant 2 over several times on December 191, 191, and the defendant 2 shall sell part of this case and use the remaining real estate to pay the above loan and then transfer registration of ownership to defendant 1 (hereinafter "the agreement of this case"). The above first ownership transfer registration shall be valid as a registration in accordance with the substantive relation. Even if it is not so, as long as defendant 2 and the defendant 1 succeeded to the possession of the real estate of this case for 10 years with the prescription acquisition or 20 years with the prescription acquisition, the plaintiff's claim of this case shall not be justified.

3. Determination on the cause of the claim

1) Relevant legal principles

Where the registration of ownership transfer is completed with respect to real estate, not only the third party but also the former owner is presumed to have acquired ownership through legitimate procedures and causes. Thus, the fact that the registration is invalidated due to improper procedures and causes is proved to have the burden of proof against the former registration titleholder's will. However, if it is proved that the registration of ownership transfer of the former registration titleholder goes against the former registration titleholder's will or that there are doubtful circumstances that the registration procedure is not run lawfully, the presumption power is broken (see, e.g., Supreme Court Decisions 99Da65462, Mar. 10, 200; 2007Da917566, Mar. 27, 2008; 2010Da21702, Jul. 22, 2010).

The registration of transfer of ownership filed under the name of the former owner after the death of the former owner has already existed, but if the predecessor is living in the case where the inheritance commenced with the person liable for registration during the absence of the application for registration, the heir files an application for registration that the former owner would have filed, or the public official files an application for registration and where special circumstances are recognized such as the death of the principal or his agent before the registration is completed after the registration is received, there is no room to acknowledge the presumption of the relevant registration. Therefore, the person who claims the validity of registration filed under the name of the deceased and made under the latter should assert and prove that there was such special circumstances (see Supreme Court Decision 2003Da3157, Sept. 3, 2004

In accordance with the above legal principles, the first day, the deceased non-party 1 died on January 6, 1992, and the fact that the first ownership registration of this case was completed in the name of defendant 2 from the deceased non-party 1 to the deceased non-party 1 is as seen earlier. As such, the first ownership registration of this case was completed after the death of the deceased non-party 1, and in principle, the cause of the second ownership registration of this case is null and void unless there is any assertion or proof of special circumstances in accordance with the above legal principles, and thus, the second ownership registration of this case is also null and void. Thus, the defendants are obliged to perform the procedure for the cancellation registration of the first and second ownership registration of this case, which was completed with respect to each real estate

3) Determination as to the defendants' assertion

A) Determination as to the existence of special circumstances under the aforementioned legal doctrine

In full view of the statements in the evidence Nos. 1 and 3 as to each of the real estate in this case, it is recognized that there is a sales contract as of December 28, 191 and the seal of the deceased Nonparty 1 and Defendant 2 is affixed, but in light of the following facts, it is difficult to believe that some of the defendant 2 and Defendant 1 as to the defendant 1's personal examination results are consistent with the defendants' assertion, and there is insufficient evidence to acknowledge that there was the agreement in this case's evidence Nos. 1 and 3 merely based on the statements in the evidence Nos. 1 through 3, and there is no other evidence to acknowledge them. Accordingly, the defendants' assertion that the registration of transfer of ownership in this case is valid due to special circumstances is without merit.

① On December 12, 1991, the deceased Nonparty 1 was hospitalized in a hospital located in Yongsan-gu. From December 27, 1991 to January 5, 1992, the deceased Nonparty 1 was hospitalized in a hospital affiliated with Yongsan-gu Seoul National University Hospital and died on January 6, 1992.

② In the preparatory document dated May 19, 2016, the Defendants stated that “Defendant 2, on December 28, 1991, sent the deceased Nonparty 1 a face to the deceased Nonparty 1 (to the effect that he/she went to the Macheon National University located in Yongsan-gu) and received a delivery of a certificate of registration, a certificate of seal impression, and a certificate of seal impression on each of the instant real estate.” In the party personal examination against Defendant 2, Defendant 2 stated, “At the time the deceased Nonparty 1 was hospitalized in the Jinjin National University, before December 27, 191, 191, he/she was hospitalized into the hospital, he/she was unable to obtain a statement from Defendant 2 to the effect that he/she kept the documents related to each of the instant real estate back to the sick National University, with credibility (in light of the empirical rule, it is difficult to obtain a statement from the deceased).”

③ The Defendants asserted to the effect that the instant agreement was concluded, but the age difference between the deceased Nonparty 1 and Defendant 2 (the deceased Nonparty 2 is similar to the deceased Nonparty 1’s children). The deceased Nonparty 1’s statement that the age difference was difficult to easily obtain the Defendants’ statement that he borrowed money from the marriage with a considerable amount of age difference as above, and Defendant 2 did not prepare any instrument concerning the deceased Nonparty 1 or urged the deceased Nonparty 1 to make the repayment. In fact, even if it was necessary to make the payment due to the occurrence of the obligation as above, it is natural for the deceased Nonparty 1 to donate the land to Defendant 1, who is the son, and to have Defendant 2 repay the obligation (the entire land exceeds the debt amount to Defendant 2, and there is no reason to obtain the above assertion by the Defendants, considering the fact that there is no reason to obtain the said payment easily.

④ The Defendants asserted that the existence of the instant agreement is acknowledged as indirect facts, since the Plaintiff’s certificate of personal seal impression and power of attorney, etc. was attached to the deceased Nonparty 1’s certificate and power of attorney during the enforcement of the instant agreement. However, it is insufficient to prove the fact that the documents necessary to receive the instant First Ownership Registration were prepared, but it is insufficient to prove that the instant agreement had been entered into force, and there is no other evidence to acknowledge the instant agreement.

B) Determination as to the assertion that the acquisition by prescription accords with the substantive relationship upon completion of the acquisition period is valid

(1) Relevant legal principles

If the nature of the source of possessory right of real estate is not clear, the possessor shall be presumed to possess it in good faith with the intention of possession and in good faith. In a case where it is proved that the possessor illegally occupied the real estate owned by another person with the knowledge of the absence of legal requirements such as juristic act which may cause the acquisition of ownership at the time of commencement of possession, barring any special circumstance, the possessor shall reject the ownership of another person and does not have the intention to possess it. Thus, the presumption of possession with the intention to own is broken (see Supreme Court en banc Decision 95Da28625 delivered on August 21, 1997, etc.).

The prescription period for acquisition of the registry requires that there was no negligence in the commencement of possession, and the burden of proof is the claimant (see Supreme Court Decision 2004Da13052 delivered on June 25, 2004, etc.). Here, the term "non-performance" means that there was no negligence in believing that the possessor is his own ownership (see Supreme Court Decision 2005Da12704 delivered on June 23, 2005, etc.).

(2) Determination

(A) Determination as to Defendant 2

According to the records, since Defendant 2 did not possess each of the real properties of this case, it cannot be asserted that the period of prescription or the period of prescription for the acquisition of each of the real properties of this case has expired, and that the registration of transfer of the first ownership of this case is valid in accordance with the substantive relationship. Thus, there is no reason for Defendant 2’

(B) Determination as to Defendant 1 (acquisition of prescription)

Defendant 1, first of all, cultivated the real estate of this case with the deceased non-party 1 before the death of the deceased non-party 1. From January 6, 1992, the transfer registration of the first ownership of this case was completed and continued to occupy the real estate of this case from January 6, 1992, and the fact that Defendant 1 had completed the transfer registration of the second ownership of this case on April 4, 2003 is as above.

(2) Pursuant to Article 197(1) of the Civil Act, the possession of Defendant 1’s independence, good faith, peace, and public performance shall be presumed.

③ Furthermore, comprehensively taking account of the evidence Nos. 6 and 9’s respective descriptions and images as well as the overall purport of the arguments and arguments against the Defendants, each of the instant real estate was distributed around the deceased Nonparty 1’s house. The real estate ownership of each of the instant real estate between Defendant 2 and Defendant 1 was led to the agreement between Defendant 1 and the deceased Nonparty 1 that it should be attributed to Defendant 1. The Plaintiffs did not take measures to recover the instant real estate by filing a lawsuit on the ownership over a period exceeding twenty (20) years after the completion of the registration of the first ownership transfer. Considering the above facts and the above facts, it is difficult to view that Defendant 1 cultivated each of the instant real estate around the deceased Nonparty 1’s housing before the deceased Nonparty 1’s death until the deceased Nonparty 1 had been aware that it was inherited to himself, and that there was no negligence on the part of the deceased Nonparty 1’s owner of each of the instant real estate for about twenty (20) years since the commencement of the dispute over each of the instant real estate.

Ultimately, from April 4, 2003 when the registration of ownership transfer was completed, Defendant 1 occupied each of the instant real estate in good faith and in good faith with the intention of possession as of April 4, 2003, and acquired by prescription the registration under Article 245(2) of the Civil Act on April 4, 2013 when 10 years have passed since the date of the above possession.

The Plaintiffs asserted that Defendant 1 did not have the intent to own each of the instant real estate by occupying it without permission, so the gist of Nonparty 3’s testimony by Nonparty 1 of the first instance trial, which seems consistent with this, is that the deceased Nonparty 1 was the share of the Plaintiffs’ respective instant real estate, and that the Defendants obtained and used the documents of Nonparty 1 necessary for the registration of ownership transfer of this case.

However, in light of the fact that each real estate of this case is the land around the house where the deceased non-party 1 and defendant 1 were residing and that the defendant 1 had cultivated before this time, the testimony to the effect that the deceased non-party 1 donated each of the real estate of this case to the plaintiffs is difficult to believe. The argument that the defendants completed the registration of the transfer of the first ownership of this case against the deceased non-party 1's will is merely a conjecture, and it is insufficient to recognize the fact that the defendant 1 occupied the real estate of this case without permission, knowing well that there is no legal act or other legal requirements that can cause the acquisition of ownership at the time of the commencement of possession of each of the real estate of this case without permission, and there is no other evidence to recognize it (the conclusion of the agreement of this case as seen above is unclear, but it cannot be found that the defendant 1 occupied the real estate of this case without permission immediately on the basis of this circumstance).

4) Sub-committee

Ultimately, Defendant 2 is obligated to implement the procedure for registration of cancellation of ownership transfer registration, which was completed on January 6, 1992 by the Daejeon District Court, Jin-si Registry of the Daejeon District Court, as to each of the instant real estate, to the Plaintiff. Meanwhile, the registration of ownership No. 2 in this case is valid as a registration consistent with the substantive relationship, and the Plaintiffs’ claim against Defendant 1 in this case is groundless.

3. Conclusion

Therefore, the part against Defendant 2 among the plaintiffs' claims in this case against the defendant 2 shall be cited for the reasons, and the part against Defendant 1 shall be dismissed for the reasons. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiffs' appeal shall be accepted, and the part against Defendant 2 in the judgment of the court of first instance shall be revoked, thereby ordering the implementation of the procedure for cancellation of ownership transfer registration, and the remaining appeal by the plaintiffs shall

[Attachment]

Judges Jin Jin-hun (Presiding Judge)