Whether the plaintiff can seek for the cancellation of the registration of transfer of ownership in the name of the defendants, which has been made subsequent registration and based on the registration of ownership transfer in the name of the same person, where the registration of ownership transfer in the name of the plaintiff is based on the former registration and the invalidity of cause is registered.

Where registration of ownership preservation has been made in duplicate in the name of the same person, registration shall be cancelled as a registration of invalidation without examining whether it conforms to the substantive legal relationship. However, if registration of ownership transfer in the name of the plaintiff which was made by the former registration is invalid, barring special circumstances, the plaintiff does not have the right to request the cancellation of the registration after the latter registration and the transfer registration in the name of the defendants which was made based on it, unless there are special circumstances. Thus, even if the latter registration is null and void, the plaintiff cannot accept the request for cancellation registration without any title and order the cancellation thereof.

Articles 186 and 214 of the Civil Act

Lee Jong-young, Attorneys Park Jong-young et al., Counsel for the defendant-appellant

Lee-gu et al., Counsel for the plaintiff-Counterclaim plaintiff-appellant

Seoul Civil District Court Decision 89Na1802, 1819 (Counterclaim) decided June 14, 1989

1. The part of the lower judgment against the Defendant (Counterclaim Plaintiff) shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Civil Procedure District Court.

2. The plaintiff (Counterclaim defendant)'s appeal is dismissed.

The costs of appeal dismissed above are assessed against the plaintiff (Counterclaim defendant).

1. We examine the Defendant (Counterclaim Plaintiff, Defendant hereinafter)’s grounds of appeal.

(1) According to the reasoning of the judgment below, the court below determined that the registration of ownership transfer in the name of the non-party on June 22, 1965 was null and void since the registration of ownership transfer in the name of the Republic of Korea was made on June 30, 1965 with respect to the real estate in this case as of June 22, and the registration of ownership transfer in the name of the non-party on the basis of the above former registration was made on the basis of the above latter registration, and that the transfer registration in the name of the non-party on the basis of the above latter registration was made on the basis of the ownership transfer in the name of the non-party on the real estate register system in Korea adopting the registration form for the Japanese real estate, and the above registration was made on the basis of time after it was null and void without examining whether it conforms to the substantive legal relationship. Thus, the defendants, who are the property successors of the above Lee Jong-hunon, were liable to perform the registration of ownership transfer registration in the name of the non-party on the ground that the above land was sold by the non-party on this judgment and purchased.

(2) However, in a case where a registration of initial ownership was made in duplicate in the name of the same person, if it is necessary to consider whether the subsequent registration is consistent with the substantive legal relationship, it shall be cancelled as at the time of the original adjudication. However, if the registration of ownership transfer in the name of the plaintiff, which was made by the previous registration, is invalid, barring special circumstances, the plaintiff shall not have the right to request the cancellation of the subsequent registration and the registration of ownership transfer in the name of the defendants, which was made by the previous registration, unless there are special circumstances. Therefore, even if the subsequent registration becomes null and void, the plaintiff cannot accept the request for cancellation and order

Although the judgment of the court below judged that the registration of transfer of ownership in the name of the plaintiff is an invalidation of the cause, it is contradictory to the reasoning of the plaintiff's request for cancellation registration against the defendants, and it is inevitable to see that it erred by misapprehending the legal principles on the claim for cancellation registration. This is reasonable as it constitutes the ground for reversal under Article 12 (2) of the Act on Special Cases concerning

2. We examine the Plaintiff’s attorney’s grounds of appeal.

In its reasoning, the court below determined that: (a) the non-party Lee Ho-hoon was distributed the instant real estate from the country to the country in accordance with the Farmland Reform Act and completed its repayment on or around November 1956; and (b) the plaintiff acquired the ownership of the instant real estate by acquiring the instant real estate through the distribution of the instant real estate from the country to the non-party Lee Ho-hun and completing the registration of ownership transfer as stated in the purport of claim based on the certificate of No. 3 (Reimbursement) under the premise that he purchased the instant real estate from the above Lee Ho-hoon; (c) although the above certificate of claim No. 3 was completed on the basis of the above previous registration, there is no date of preparation; and (d) the above certificate of claim No. 1955 (short-term 4288), which was recorded on December 31, 1956 (short-term 428), and there is no counter-proof evidence; and (d) the above recognition was invalid.

In light of the records, the above judgment below is acceptable, and the plaintiff is issued a certificate of repayment as a de facto owner under Article 2 of the Act on Special Measures for the Registration of Transfer of Distribution Farmland Ownership. According to Article 3 of the Enforcement Rule of the above Special Measures (Enforcement Rule of the Ministry of Agriculture and Forestry No. 79 of May 25, 1961), the head of the Gu, the Mayor of the Eup/Myeon, or the head of the Eup/Myeon, confirmed the result of the investigation as to the de facto owner under Article 2, and stated the reasons for the change in the farmland list and the repayment ledger in writing, and issued a certificate of reimbursement under Article 3 of the Act, even though the statement No. 7-1 and 2, which appears to be a certificate of repayment of the above land, are not presented at all, and therefore, the above certificate of repayment is not actually prepared, and it cannot be found that the above certificate of repayment is legitimate, and there is no error in the misapprehension or correction of the law of evidence.

3. Therefore, the part of the judgment of the court below against the defendants is reversed and remanded. The plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)