[1] The presumption power of the registration of the land owner in the land investigation register and whether the presumption power of the registration of the preservation is reversed in a case where a person other than the title holder of registration of the preservation of ownership is found to have

[2] In the case of registration of invalidation for which registration of preservation of ownership is to be cancelled, whether a claim for cancellation can be accepted even if the title to claim cancellation is not recognized to the person who seeks cancellation (negative)

[3] Whether there is a title to seek cancellation of the registration against the title holder of the registration of ownership preservation against the title holder who sold the land to another person or his/her heir after the assessment (negative)

[1] Articles 9 and 15 of the former Land Investigation Decree (repealed by Ordinance No. 2, Aug. 13, 1912), Articles 186 and 187 of the Civil Act, Article 130 of the Registration of Real Estate Act / [2] Articles 186 and 214 of the Civil Act, Article 130 of the Registration of Real Estate Act, Article 288 of the Civil Procedure Act / [3] Articles 9 and 15 of the former Land Investigation Decree (repealed by Ordinance No. 2, Aug. 13, 1912), Articles 186 and 187 of the Civil Act, Article 130 of the Registration of Real Estate Act

[1] Supreme Court Decision 95Da4654, 46661 delivered on May 23, 1997 (Gong1997Ha, 1856), Supreme Court Decision 98Da13686 delivered on September 8, 1998 (Gong1998Ha, 2406), Supreme Court Decision 99Da3591 delivered on October 22, 1999 (Gong1999Ha, 2416), Supreme Court Decision 98Da17831 delivered on February 26, 199 (Gong199Sang, 607), Supreme Court Decision 2004Da5044 delivered on September 28, 2005 (Gong2005Ha, 1673, 2408Da52089 delivered on September 28, 2008)

Plaintiff (Law Firm Index, Attorneys Park Young-hoon et al., Counsel for plaintiff-appellant)

Korea

Suwon District Court Decision 2006Na26585 Decided October 18, 2007

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

The grounds of appeal are examined.

A person registered in the Land Survey Book as an owner shall be presumed to have become final and conclusive by taking into account the circumstances as the owner of the land, unless there is any counter-proof such as the change in the situation by the adjudication, etc., and thus, the presumption of registration of ownership preservation shall be broken if it is found that a person other than the title holder of the preservation registration has received the situation of the land in question (see, e.g., Supreme Court Decisions 95Da46654, May 23, 1997; 98Da13686, Sept. 8, 1998; 98Da13686, Sept. 24, 2005). Meanwhile, in order to cancel registration of ownership preservation in another person’s name as part of the exercise of the right to demand exclusion of real rights based on the ownership of the real estate, a person who has the title to request the cancellation thereof should be actively asserted and attested, and if such title is not recognized, a person who has the title to the registration can not accept such claim against another person.

According to the reasoning of the judgment below, after compiling the adopted evidence, it was true that Nonparty 1, the prior owner of the Plaintiff, entered the facts in the name of the assessment titleholder of each land of this case before the partition. However, it is reasonable to deem that Nonparty 1 or his heir, at the time of registration of preservation of ownership in the name of the Defendant for each land of this case, the land of this case was already disposed of to a third party and lost ownership. Thus, the Plaintiff cannot be deemed as the owner of each land of this case, and thus, the Plaintiff’s claim seeking cancellation of registration of preservation of ownership in the name of the Defendant

In light of the above legal principles and records, we affirm the fact-finding and judgment of the court below as just, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)