A. The case holding that it is reasonable to deem that the official record was kept at the time of the above preservation registration in a case where a registration of preservation of ownership has been made for a certain land, but the official record of such land is not kept at the competent agency.

B. Whether a landowner has the interest in a lawsuit seeking confirmation of ownership against the State where a duplicate registration is made for the same land

(a) The case holding that it is reasonable to deem that a registration of preservation of ownership has been made on a certain land, but the cadastral record of such land is not kept at the competent agency at the time of the registration of preservation.

B. If there is a dispute over the ownership attribution due to double registration of the same land, the titleholder of pre-registration may seek the procedure of registration of ownership preservation and transfer registration against the registrant on the ground that the pre-registration is valid, and then cancel the registration after seeking the implementation of the procedure of registration of ownership preservation and transfer registration, etc., to eliminate the apprehensions about ownership attribution arising from double-registration. Unless there are special circumstances, such as the State's assertion that the land is owned by the State, there is no benefit in filing a lawsuit against the State to seek the confirmation of ownership ownership

A. Article 130 of the former Registration of Real Estate Act (amended by Act No. 3692 of Dec. 31, 1983); Article 187 of the Civil Procedure Act

Supreme Court Decision 81Da505 delivered on December 26, 1984 (Gong1985, 242) 92Da9340 delivered on July 10, 1992 (Gong192, 2365)

[Defendant-Counterclaim] Plaintiff 1 and 3 others, Counsel for defendant-appellant-appellee)

Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant

Cheongju District Court Decision 91Na1319, 1326 decided June 17, 1993

Of the judgment below, the part of the judgment of the court below against the defendant 1 and the defendant 2 as to the main claim against the plaintiff 1 and the defendant 2, and the defendant 2 as to the counterclaim against the plaintiff 2 (the counterclaim defendant) is reversed, and that part of the case is remanded to the Cheongju District Court Panel Division.

The Plaintiff (Counterclaim Defendant)’s appeal against the Republic of Korea is dismissed, and the costs of appeal are assessed against the Plaintiff (Counterclaim Defendant).

We examine the grounds of appeal.

1. As to the grounds of appeal against Defendant 1 and Defendant 2 (Counterclaim Plaintiff, Defendant 2)

A. According to the reasoning of the lower judgment, the lower court determined that: (a) the above land was no more than 3 square meters of the above land under the current cadastral record and no more than 5 square meters for the purpose of the registration of the said land; (b) the area of the said land was re-divided from 1 piece of land divided into 68 square meters; (c) the current cadastral record (road address appears to be 2,380 square meters; and (d) the registered forest land was no less than 3 square meters in the current cadastral record and no more than 5 square meters in the cadastral record and no more than 7 square meters in the cadastral record and no more than 8 square meters in the cadastral record were recorded on the current cadastral record; and (e) the land was no more than 5 square meters in the cadastral record and no more than 7 square meters in the cadastral record and no more than 9 square meters in the cadastral record were recorded on the current cadastral record; and (e) the land was no more than 5 square meters in the cadastral record and no more than 98 square meters in the cadastral record.

B. However, as seen below, the land register with respect to 738 square meters prior to the above ( Address 5 omitted) shall be deemed to have been kept at the competent agency around June 30, 1965, where the registration of ownership preservation was completed in one of the above deceased Nonparty 1.

(1) According to Article 29(1) of the former Cadastral Act (amended by Act No. 165 of Dec. 1, 1950 and amended by Act No. 829 of Dec. 8, 1961; hereinafter the same shall apply), in cases where part of forest land becomes attached thereto or owners are different, owners shall file a report on subdivision. Paragraph (2) thereof, if deemed necessary, owners may file a report on subdivision with the Government. Article 19 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 810 of May 7, 1976) provides that in cases where land has to be newly registered on the land cadastre due to conversion of land category, a report on subdivision is made ex officio by the Government of the Republic of Korea under Article 14, 9, 15, 10, and 8 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 810 of May 7, 1976).

However, in order to convert part of forest land into land, the part of the forest land was divided from the entire forest land in the forestry land map, the divided part was deleted from the forest land map, and the land cadastre should be registered in the land cadastral map, and the land cadastre should be newly prepared and registered. Thus, if the part of the land in this case is divided from the above ( Address 2 omitted) forest into ( Address 3 omitted), and if ( Address 3 omitted) forest was divided into ( Address 5 omitted) forest registration and ( Address 5 omitted) was registered in the land cadastral map ( Address 5 omitted), it is reasonable to deem that the land cadastre was prepared and kept in the competent authority, as well as the registration in the above land cadastral map, before the above ( Address 5 omitted) forest was registered

(2) It cannot be seen that there was a statutory ground to delete the (No. 5 omitted) previous registration from the cadastral map. In addition, if a registration has been completed, barring any special circumstance, it is presumed that the registration has been completed lawfully in the cause and procedure (see, e.g., Supreme Court Decision 69Da311, May 13, 1969; Supreme Court Decision 92Da9340, Jul. 10, 192). Furthermore, if the registration of initial ownership was completed before the above (No. 5 omitted), the registration of initial ownership was completed on June 30, 1965, the former Registration of Real Estate Act (No. 536, Jan. 1, 1960) which was in force on June 30, 1965, which had been attached to the above (No. 536, Jan. 1, 1960). Thus, it is reasonable to view that the registration of initial ownership was being attached to the competent authority prior to the above (No. 5).

C. Therefore, inasmuch as there was a land cadastre on June 30, 1965, in which the registration of preservation of ownership was completed with respect to the above ( Address 5 omitted) No. 738 square meters prior to the above ( Address 5 omitted), the registration indicated at 738 square meters prior to the above ( Address 5 omitted) shall be deemed a legitimate registration as to the land in this case, even if the land cadastre was not kept to the competent authority due to any cause which is not revealed at present and was registered in the cadastral map and was deleted, and therefore, the registration indicated at 738 square meters prior to the above ( Address 5 omitted) shall be deemed a legitimate registration. Accordingly, the registration of preservation of ownership in Defendant 1, who is indicated at 2,380 square meters in forest and field as above ( Address 3 omitted), shall be deemed a case where a registration of preservation of ownership has been made in duplicate, and so, the registration of ownership in Defendant 2, who was first registered, shall be deemed null and void.

D. Therefore, the court below held that the registration indicated in 738 square meters prior to the above ( Address 5 omitted) is valid as the registration of the land in this case as to the indication of real estate, and further determination as to whether the registration of preservation of ownership by one of the deceased non-party 1 is invalid as to whether the registration of preservation of ownership is a registration of the ground for invalidation. However, the court below held that the registration indicated in 738 square meters prior to the above ( Address 5 omitted) cannot be seen as a valid registration of the land in this case because there is no land cadastre as to the above ( Address 5 omitted) at the time of registration of preservation of ownership, and therefore, the registration indicated in 738 square meters prior to the above ( Address 5 omitted) cannot be seen as a valid registration of the land in this case. Thus, the court below

However, if it is found that a person other than the above deceased non-party 1 was aware of the fact that the registration of preservation of ownership was conducted on the land concerned, and according to the records, it can be known that the above deceased non-party 1 was under the circumstances of the country other than the above deceased non-party 1, the registration of preservation of ownership of the deceased non-party 1, but the plaintiff (the counter-party 1; the plaintiff hereinafter the plaintiff) asserted that he purchased the above deceased non-party 1, his deceased non-party 1, his husband, from the deceased non-party 3. The witness non-party 4 and the non-party 5 testified to this effect. Thus, the judgment of the court below should be made as to whether the above deceased non-party 1's registration of preservation of ownership corresponds to the actual relation. In addition, since the plaintiffs asserted for the acquisition of prescription, the purport of the registration of preservation of ownership of the above non-party 1, as shown in the above non-party 1's name for possession for twenty (20) years or 738).

2. As to Defendant Republic of Korea’s ground of appeal

The reason for the plaintiffs' claim against the defendant Republic of Korea is that the above deceased non-party 1, who is the deceased's decedent, owned the above land of this case at 738 square meters prior to June 30, 1965, and died on August 27, 1976 and jointly succeeded by the plaintiffs. However, on December 10, 1980, the defendant 1 stated the above land at 2,380 square meters of forest land and 2,380 square meters under the Act on Special Measures for the Registration, etc. of Real Estate Ownership, and the registration of ownership transfer was completed on November 3, 1989. Accordingly, the registration of ownership in the defendant 2's name is null and void as a duplicate registration. Therefore, since the registration of ownership transfer in the defendant 2's name is null and void, each of the above registrations is sought against the defendants, and the above land is owned by the defendant Republic of Korea.

However, if there is a dispute as to the ownership attribution due to double registration of the same land, the registrant of the pre-registration shall seek the procedure of registration of ownership preservation and transfer registration against the nominal owner and cancel the registration after seeking the implementation of the procedure of registration of cancellation of ownership preservation, transfer registration, etc. on the ground that the pre-registration is valid, thereby eliminating unstable in ownership attribution arising from double-registration. Unless there are special circumstances, such as where the State claims that the land is owned by the State, there is no benefit of lawsuit against the State to seek confirmation of ownership ownership of the land.

Therefore, the plaintiffs' lawsuit of this case against the defendant Republic of Korea shall be dismissed as it has no interest in lawsuit, and the court below is somewhat different in its reasoning, but it is justified that the judgment of the court of the first instance which dismissed the plaintiffs' lawsuit of this case against the defendant Republic of Korea has been maintained as it is, therefore, the plaintiffs' argument about

3. Therefore, of the judgment of the court below, the part concerning the plaintiffs' claim against the defendant 1 and 2 and the part concerning the counterclaim against the plaintiffs by the defendant 2 is reversed and remanded to the court below without examining the remaining grounds of appeal. The plaintiffs' appeal against the defendant Republic of Korea is dismissed and the costs of appeal against the defendant are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices

Justices Yoon Young-young (Presiding Justice)