2015Da22113 Return of Fraudulent Gains

A

B

Seoul High Court Decision 2013Na57360 (main office), 2015Na3046 decided March 17, 2015

(Counterclaim) Judgment

April 24, 2018

The part of the judgment of the court below regarding the main lawsuit is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The lower court determined that: (a) on August 12, 1986, upon filing an application for annexation of the land No. 1 and the land No. 2 owned by the Plaintiff, the competent authority registered the area after annexation of the land No. 2 in the land cadastre and the cadastral map of this case on the ground that the land No. 2 was combined with the land No. 1 and the cadastral map of this case on August 12, 1986; (b) on the ground that the Plaintiff had completed registration of cancellation and closure on the land cadastre and cadastral map of this case on the land No. 2; (c) on the ground that the land No. 1 and the housing of this case owned by the Plaintiff had completed registration of preservation of ownership with the lot number of the land No. 1 in this case on the land of this case on the ground that the land No. 2 were combined with the land No. 1 and the land of this case on the land of this case; and (d) on the ground that the Defendant had completed registration of ownership transfer under the name of the land No. 2 and the title No. 1 in the auction procedure. 2. 3.

2. However, it is difficult to accept the above determination by the lower court.

The lower court determined that the Defendant acquired the ownership of the instant land No. 1 and the instant land No. 2 by obtaining a successful bid in the said voluntary auction procedure and paying the proceeds therefrom, on the premise that the registration of the instant land No. 1 is valid for the instant land No. 2, and the registration of the instant land No. 2 is not a valid registration.

However, Article 38(1) of the Registration of Real Estate Act provides that " even in cases where registration of ownership transfer is made with respect to any of the land combined before the combination of lots of land is registered after completion of the procedure for combining lots of land pursuant to the Act on the Establishment, Management, etc. of Spatial Data, the registered titleholders of the ownership of the relevant land may apply for the combination of lots of land to co-ownership of the land after combination of lots of land if interested parties consent thereto." This is premised on the validity of the existing registration of each parcel of land before combination of lots of land is registered even if the procedures for combining each parcel of land have been completed.

Examining the facts established by the court below in light of the aforementioned legal principles, since the process of annexation between the land No. 1 and the land No. 2 in this case was completed, but the registration of the combination was not made, all the existing registrations as to each of the above land are effective registrations. Nevertheless, the court below erred by misapprehending the legal principles as to the validity of each land registration which was not completed after the combination of land, on the premise that the registration of the land No. 2 in this case was not effective, and thus the land was reverted to the defendant. The above legal principles of the judgment of the court below, which was invoked by the court below, are different from the case in this case.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning the principal lawsuit among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee

Justices Kim Jae-in