In a case where the registration of transfer of ownership under the Act on Special Measures for the Registration, etc. of Transfer of Real Estate is a person without rights, and thus the registration of transfer of ownership should be cancelled as a cause invalidation, whether the presumption power of registration is reversed (affirmative); and whether the registration of transfer of ownership completed based on the registration of transfer of ownership, which is invalid as a cause, is void even if it is registered

The presumption of registration of ownership transfer under the Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (hereinafter “Special Measures Act”) is presumed to be a registration in conformity with the substantive legal relationship, but the registration of ownership transfer is also based on the succession of ownership from the former registration titleholder, and as a guarantee and confirmation letter, if the former registration titleholder is an unentitled person, and thus the registration of ownership transfer from the former registration titleholder should be cancelled as the cause invalidation, the presumption of registration is reversed. In the same purport, unless the registration is completed under the Act on Special Measures for the Registration of Ownership, unless it is revealed that a person other than the former registration titleholder was the situation of the relevant land, and thus, the registration of ownership transfer based on the registration of ownership transfer is invalid as long as it conforms to the specific substantive relationship or it is impossible to assert or prove the fact of acquisition by succession. Thus, the registration of ownership transfer based on the registration of ownership transfer

Article 186 of the Civil Act, Article 288 of the Civil Procedure Act

Supreme Court Decision 90Meu16723 Decided November 9, 1990 (Gong1991, 47) Supreme Court Decision 91Da42852 Decided September 22, 1992 (Gong1992, 2961), Supreme Court Decision 2002Da43417 Decided May 26, 2005 (Gong2005Ha, 107), Supreme Court Decision 2013Da44171 Decided September 12, 2013

Plaintiff (Attorney Byung-jin et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm KEL, Attorneys Kim Yong-hoon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2016Na2039307 decided August 24, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The presumption of ownership transfer registration under the Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (hereinafter “Special Measures Act”) is presumed to be a registration consistent with the substantive legal relationship, but the registration of ownership transfer is also based on the succession of ownership from the former registration titleholder, and guarantee and confirmation document also have to be cancelled as the invalidation of the cause for the registration of ownership transfer since the former registration titleholder is an unentitled person, if the former registration titleholder is to be cancelled as the invalidation of the cause for the registration (see, e.g., Supreme Court Decisions 90Meu16723, Nov. 9, 1990; 2013Da44171, Sept. 12, 2013). In the same purport, the presumption of ownership transfer registration is reversed if a person other than the former registration titleholder is presumed to have been subject to the assessment of the relevant land, and thus, it conforms to the substantive relationship of the latter registration titleholder or fails to assert and prove the fact of acquisition by succession, which is a registration of ownership transfer.

After comprehensively taking account of the adopted evidence, the court below acknowledged the facts as stated in its decision, and determined that the registration of ownership transfer in the defendant's name based on the invalid registration is invalid even if it was completed under the Act on Special Measures, inasmuch as it was proved that the non-party 1 was the plaintiff's prior owner of the land of this case and the land of this case No. 4 of this case and the land No. 5 of this case, the presumption power of the registration of ownership transfer on each of the above lands of non-party 2, the defendant's father, was broken, and there was no evidence to recognize that the non-party 2 succeeded to each of the above lands

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on the presumption of registration and burden of proof under the Act on Special Measures, contrary to what is alleged in the

2. Regarding ground of appeal No. 2

According to Article 197(1) of the Civil Act, an occupant of an object is presumed to have occupied the object with the intention of possession. However, in cases where it is proved that the possessor occupied the real estate owned by another person without permission with the knowledge of the absence of any legal act or other legal requirements that may cause the acquisition of ownership at the time of commencement of possession, barring any special circumstance, the possessor shall be deemed not to have an intention to reject the ownership of another person and not to possess it. Thus, the presumption of possession with the intention of possession is broken (see, e.g., Supreme Court en banc Decision 95Da28625, Aug. 21, 1997; Supreme Court Decision 201Da11459, Mar. 13, 2014).

In full view of the facts and circumstances as indicated in the reasoning acknowledged by the adopted evidence, the lower court determined that it is reasonable to deem that the Defendant occupied the land No. 4 of this case (including the disputing part) and the land No. 5 of this case without permission with knowledge of the title at the time of commencement of possession, and that it cannot be deemed that the Defendant’s possession of the land No. 4 of this case and the land No.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the presumption of independent possession, the burden of proof

3. Conclusion

Therefore, the 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 Justices on the bench.

Justices Ko Young-han (Presiding Justice)