Seoul Central District Court 2012 Gohap78318 ( October 22, 2013)

It is reasonable to view that the Plaintiff’s prior owner lost ownership by disposing of the land after the circumstances.

Although the pre-division of the land was assessed against BB, the ownership was transferred to EE, Japan, during the Japanese colonial era, and the ownership was transferred to EE, and the ownership was sold pursuant to Article 15 of the former Act and Article 10 subparagraph 3 of the Enforcement Decree of the same Act, the cancellation of the registration of ownership preservation under the name of the Defendant, premised on the fact that the Plaintiff is the real owner of each of the instant land

2013Na2003055 Registration for cancellation of ownership

IsaA

Korea

Seoul Central District Court Decision 2012Gahap78318 Decided January 22, 2013

November 7, 2013

November 28, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim (including the part added by this court) is all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant completed on October 20, 1970 the land listed in paragraph (1) of the attached list list (hereinafter referred to as "land No. 1 of this case") with respect to the plaintiff as to the land listed in paragraph (2) of the same list (hereinafter referred to as "land No. 2 of this case"), which was completed on April 24, 1979 by the same registry office as to the land listed in paragraph (3) of the same list (hereinafter referred to as "third land of this case"), and completed on December 27, 1993 by the same registry office as to the registration procedure for cancellation of each registration of ownership preservation (the plaintiff added the claim for the land No. 2 of this case to the court).

Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. The summary of the case and the facts premised on the case

A. Case summary

The instant case pertains to the Defendant, the heir of the deceasedB, who is the title holder of each of the instant lands, and the Plaintiff, the heir of the deceasedB, was divided from the land inherited by the deceasedB and owned by the Plaintiff, who is the heir of the deceasedB. As such, each registration of preservation of ownership in the name of the Defendant was made without any title, and thus, sought implementation of each of the registration procedures for cancellation of ownership preservation in the name of the Defendant, by asserting that such registration is null and void.

The court of first instance accepted all the plaintiff's claims, and the defendant appealed against them, and the plaintiff added the defendant's request for the procedure of cancelling registration of cancellation of registration of preservation of ownership in the name of the defendant as to the second land of this case to the court.

B. Presumed factual basis

1) The assessment title of each land of this case

이BB(李BB)은 1911. 6. 20. 무렵 OO도 OO군 OO면 OO리(이후 'OO시 OO구 OO동'으로 변경되었다) 417 전 1,129평(이하 '분할 전 417 토지'라고 한다, 이하 지명은 생략하고 지번만 기재한다)을 사정받았다.

2) The details of the division and registration of the land before the division

A) On March 20, 1953, the land of the fourth 417 was partitioned into 698 square meters, 417-1, 417-2, 164 square meters, 417-3, and 267 square meters, and 417-1 land (hereinafter referred to as “417-1 land before the division”) was divided into 417-1, 417-9, and 412 square meters on December 20, 1962; again, on September 16, 1966, the land of the instant case was divided into 1,2 land and 417-3 large 40 square meters, 417-54 large 77 square meters, 417-4 large 7, 417-4 and 417-170 square meters; and on March 41, 1978, the land of the instant case was divided into 417-144, 1978.

B) As to the land No. 1 of this case, the registration of ownership transfer was completed on October 20, 1970 by the Dongdaemun-gu Seoul East District Court's Gangseo-dong District Court's registry office of 44557, and the registration of ownership transfer was completed on October 24, 1970, and the registration of ownership transfer was completed on May 27, 2005 in order that the registration of ownership transfer was made on October 24, 197. The registration of ownership transfer was made on December 31, 197. The registration of ownership transfer made on December 31, 197. The registration of ownership transfer was made on April 15, 199. The registration of ownership transfer was made on May 27, 2005.

C) As to the land No. 2 of this case, the same registry office received on April 24, 1979 as the receipt No. 9847, and as to the land No. 3 of this case, the registration of preservation of ownership was completed in the future of each defendant as the receipt No. 151270, Dec. 27, 1993.

3) Entry of land-related documents, etc.

A) On the ground-based land registry prepared in 1936, 417-1, in 1936, the land-based land registry inspection protocol prepared in December 4, 1956 was entered as EE (No. 6-3), the owner of the land was entered as the taxpayer of the 417-1 land before the division was entered as EE (No. 417-1) and the old land registry was entered as the owner on September 8, 196, after the error was corrected to EE which had been located at No. OOdong 190, OF, 190, and the Republic of Korea was entered as the ownership preservation protocol in order with HF, GaFG, and 417-1 land before the division, and after the completion of the registration of ownership transfer on the land, the registration of ownership transfer was entered as the owner on the ground of the circumstances, and after the completion of the registration of ownership transfer on the land (No. 398G H). 4, 1968.

B) In addition, the land alteration resolution dated September 16, 1966 entered all taxpayers of the lands divided from the land of this case, including the land of this case, and the land of this case 417-1, before subdivision, as EE is written (Evidence 2 of this case) and EE is written as owners on the old land cadastre of this case 1 and 2, and EE is written as owners (Evidence 3 of Evidence A9 and 19) and EE is written as owners on the old land cadastre of this case 3 land (Evidence 12-2 of this case).

C) Around September 1956, Kim II was a user of 18 square meters out of the land 417-1 before subdivision to the Defendant, and the former owner was EE and paid rent by September 30, 1956, and submitted a “the preferential purchase for reverted property” (No. 6-1, 2) with respect to the above 18 square meters as to the sale investigation prepared on September 12, 1956, the sale investigation prepared on September 12, 1956 specified the site owner as EE by clearly stating the location of the above 18 square meters, the ground buildings, and the current status (No. 6-4), Kim II concluded a sales contract for the above 18 square meters portion between the Defendant and the Defendant on March 21, 1957 (No. 6-5), and Kim II’s property heir’s claim for the full payment of the sale price for the land of this case as divided No. 617, Apr. 17, 1977.

D) On the old land cadastre and land cadastre of 417-9 land, which was divided from the 417-1 land before subdivision, as well as the 417-1 land before subdivision, the owner of the above land, was changed to EE on December 31, 1962, to EE on March 21, 1964, to EJ on February 19, 190 (Evidence A-1, 2, and 3). The closed real estate register of the above land, the former registry and the registry of the Republic of Korea completed the registration of initial ownership on March 21, 1964, and the ownership transfer registration was made in sequence in the name of EK on February 19, 190 under the name of EJ on the same day (Evidence A-3 evidence 1, 2, 3).

(iv) inheritance relations;

가) 원고의 선대인 이BB(李BB)의 제적등본에는 이BB이 'OO도 OO군 OO면 OO리 188에서 전적신고'한 것으로 기재되어 있다.

나) 이BB은 1950. 11. 10. 사망하였고, 이BB의 장남인 이LL이 이BB의 재산을 상속하였다가 1974. 11. 10. 사망하였으며, 이LL의 자녀들인 이KK, 이MM, 이NN가 이LL의 재산을 상속하였고 그 중 이KK은 1992. 5. 10. 사망하였으며, 이KK의 처 박PP과 이KK의 자녀들인 이QQ, 이RR, 이SS, 이TT, 원고가 이KK의 재산을 상속하였다.

다) 이LL 및 이KK의 상속인인 이MM, 이NN, 이QQ, 이RR, 이SS, 이TT 및 원고는 2010. 6.경 분할 전 417 토지로부터 분할되어 나온 토지 모두를 원고의 단독소유로 한다는 내용으로 상속재산분할협의를 하였다.

[Ground of recognition] Facts without dispute, Gap 1 through 10, 12, 13, 18, 19, Eul 1 through 6, and the purport of the whole pleadings and arguments

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

Inasmuch as the Plaintiff’s prior to the partition of each of the instant lands, the Plaintiff succeeded to the ownership of each of the instant lands, the registration of ownership preservation in the name of the Defendant with respect to each of the instant lands is null and void. Therefore, as the Plaintiff’s inheritance of each of the instant lands, the Defendant is liable to implement the registration procedure for cancellation of each of the instant lands to the Plaintiff, as sought by the Plaintiff, as to each of the instant lands.

2) The defendant's assertion

Although the land before subdivision was assessed against BB, the ownership of the land was transferred to EE, Japan, during the Japanese colonial era, and was incorporated into the reverted property pursuant to Article 15 of the former Act and Article 10 subparag. 3 of the Enforcement Decree of the same Act, the cancellation of registration of ownership preservation under the name of the defendant, premised on the fact that the plaintiff is the true owner of each land of this case, shall not be allowed.

B. Whether the Plaintiff has the title to claim the cancellation of registration of preservation of ownership in the name of the Defendant

1) A person registered in the Land Survey Book as an owner is presumed to have become final and conclusive in view of the circumstances, barring any counter-proof such as the change in the content of the situation by the adjudication, and the presumption of registration of preservation of ownership is broken if a person other than the title holder is found to have undergone the relevant land. However, in order to seek cancellation of registration of preservation of ownership in the name of another person who completed the relevant real estate as part of the exercise of the right to claim exclusion of interference with the ownership based on the ownership of the real estate, he/she should first assert and prove that he/she has the title to claim cancellation thereof. If it is not recognized that there is such title, even if the registration of preservation of ownership in the name of another person is invalid, such claim may not be accepted. Accordingly, if the situation holder after the circumstance is recognized to have disposed of the land to another person, the title holder or his/her heir has no title to claim cancellation of registration (see, e.g., Supreme Court Decisions 2008Da18271, Dec. 24, 2008>

In addition, the geographical scenic book is a document prepared for the administrative purpose of imposing tax, and even if the name is indicated in the former land cadastre column restored before the amendment of the Cadastral Act on December 31, 1975, the presumption of right cannot be acknowledged. Since the distributed farmland repayment ledger or the distributed farmland ledger is a document prepared to enter matters necessary for repayment after the completion of the procedure for confirmation of distribution of farmland, the presumption of the alteration of right cannot be acknowledged. However, there is no limitation that the geographical scenic book or the entries in the former land ledger or the farmland distribution-related documents should be considered as the fact-finding data on the alteration of right, taking into account all the other circumstances and the contents of the entries in the other circumstances (see, e.g., Supreme Court Decisions 2008Da35128, Oct. 9, 2008; 2009Da94384, 94391, 94407, May 13, 2011).

2) As seen earlier, the Plaintiff’s prior-party BB’s 417 land before division was assessed. However, in light of the following circumstances, it is reasonable to view that the deceasedB lost ownership by disposing of the land after the circumstances, in view of the premise, Gap’s evidence 2-1 and 2, and the purport of the entire pleadings.

A) On the 417-1 land before the division, the person holding the Japanese name "E" (E) with the address of 190 OOOO-dong 190 after the 1936-B prepared by the land investigation register, which was described as the situation of 1911 by the networkB, entered as the taxpayer for the 417-1 land before the division, and the EE is highly likely to be Japan because of the transfer of creative name.

B) In addition, Kim II, which used part of the land 417-1 before subdivision, was indicated as EEE when submitting the preferential purchase source for the property devolving upon the defendant around September 1956, and entered as EEE in the land 417-1 before subdivision, the land owner entered as EE in the land inspection report prepared on December 12, 1956 on the land 417-1 before subdivision, and also entered as EE in the sale inspection report prepared around December 1956.

C) In addition, the owner's column for the former land cadastre was written this BB, and it was corrected to EE with the address of 190 OOOdong 190 on September 8, 1966, and the owner of 417-9 land was changed from B to EE in the former land cadastre before division, and the owner of 417-9 land was also changed to EE in the written resolution for the adjustment of land alteration in September 16, 196, all taxpayers of the land divided from 417-1 land before division, including each of the instant land, are written as EE.

D) Ultimately, the land survey document is written only in the column of the assessment name and the first owner column of the former land cadastre, and all the taxpayers or owners are EE in terms of the detailed descriptions of the land survey document, the preferential purchase for vested property, the land ledger inspection report, the sale inspection report, and the land alteration resolution letter, etc. written at each different time after the land survey document is written. According to the former land cadastre, the land owners are also written by changing into EE.

E) However, around October 1950, the networkB was at least 188 OO-gun O-gun No. 188, the previous permanent domicile of the deceased, and was residing there. However, the deceased and the deceased and the deceasedB’s successors were at least 417-1 land before filing a lawsuit for cancellation of registration of ownership preservation (Seoul Central District Court 2010Gahap85299) in addition to each of the instant land and each of the instant land and each of the instant land were expected to have been naturally owned by the owner, such as completing registration of ownership preservation, etc. or exercising substantial rights on several parcels of land divided from 417 land before the division.

F) Furthermore, the land 417-1 before this subdivision appears to have been owned by a Japanese person with the name of “EE”. As such, the Plaintiff did not explain not only the document written by the Defendant as to the land 417-1 before the subdivision but also the document written by Kim II, which used part of which was written by the Defendant, as well as the reasons why the Plaintiff appears to be a Japanese person, who is not a BB or its descendants, as the owner.

3) Therefore, the Plaintiff’s claim of this case, based on the premise that the right to claim the cancellation of the registration of preservation of ownership in the name of the Defendant on the instant land exists still exists to the Plaintiff, who is the heir of the deceased BB, is without merit without further examination.

3. Conclusion

If so, all of the plaintiff's claims against the defendant are without merit. The judgment of the first instance court, which different conclusions, is unfair, so it is revoked by accepting the defendant's appeal, and all of the plaintiff's claims including additional claims are dismissed.