204Na2735 Confirmation, etc. of Ownership

1. Lighting (50814-0000);

Gangwon 00 00 Dogwon 00

2. Road00 (640820-000)

Incheon 00 00 Dong 000-00 000 apartment houses of 0000

3. Road00 (670611-0000)

Chuncheon City 00,00 00-0

4. Road00 (690825-0000)

Chungcheongnam-nam 00 00 Eup 00 000 00 Dong-dong 000

5. Road00 (750625-0000)

Gyeonggi 00:00 00 Dong 000-0

[Defendant-Appellant] Plaintiff 1 and 2 others

1. Korea;

The Minister of Justice, Justice, and Justice

Litigation performers 000

2. 채00 ( 蔡00)

Current unknown whereabouts;

Last Address Gangwon 00,000,000 00-0

Chuncheon District Court Decision 2004Gadan3898 Decided July 29, 2004

April 15, 2005

may 13, 2005

1. Revocation of a judgment of the first instance;

2. The defendant Republic of Korea confirms that each real estate listed in the separate list of real estate owned by the defendant is owned by the defendant.

3. On February 28, 1983, Defendant Bohwon shall implement the procedure for the registration of ownership transfer for the completion of the acquisition by prescription on February 28, 1983 to the Plaintiffs according to the inheritance share in the attached inheritance share sheet.

4. The total costs of the lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts

The following facts can be acknowledged by integrating the whole purport of the pleadings as a result of the fact inquiry into the legal group of the court of first instance, unless there is a dispute between the parties, or after compiling the whole purport of the arguments.

A. (1) On July 15, 1974, the 00 Dogwon 00 00 Dog-160 Dog-160 Dog-20 Dog-20 Dog-2, which was divided into 936-1 Dog-456 Dog-2 73 Dog-2 Dog-2, and the 936-1 Dog-456 Dog-2 was divided into 936-1 Dog-2, 1995 and divided into 936-3 Dog-146 Dog-2, such as 936-1 Dog-310 Dog-2, which was divided into 936-1 Dog-2, 1995.

(2) On July 15, 1974, the Gangseowon-gun 00, 00, 937, 659 square meters prior to the division (hereinafter “the pre-division 937 land”) was divided into a 937-2 road and 668 square meters prior to 937-3 of the same Ri, such as a 937-1, 522 square meters prior to the division, and was divided into a 937-2 road and 988 square meters prior to the same Ri. The above 937-1, prior to the 937-1, and the 937-4, 289 square meters prior to the 937-3, prior to the division (hereinafter “the 937 square meters prior to the division”), each of the real estate was divided into a 937-38 square meters prior to the 937-530,000 square meters prior to the same day, and each of the real estate in this case was divided into the list.

나. 분할 전 936 토지 및 937 토지는 1915.(대정 4년) 5. 14. 채00(蔡00, 1942. 松城00 으로 창씨개명)에게 사정되었고, 1945.(소화 20년) 3. 13. 송성00(松城00)에게 소유권 이 전등록이 되었다.

C. After that, on November 21, 2002, the owner of the land of this case was registered in the name of Japan as described in the paragraph (b) above, and on November 21, 2002, the person who has a legitimate right to the land of this case from November 21, 2002 to May 20, 2003, and on the absence of the report within the above period, the defendant Republic of Korea publicly announced the non-state real estate to the effect that the State acquires its ownership pursuant to Article 8 of the State Property Act at the time of the absence of the report within the above period. The defendant Republic of Korea, who did not file a report within the above period, deemed it as non-state real estate, registered its right under the name of the Republic of Korea on August 25, 2003.

D. Meanwhile, Non-party 00, who was the last purchaser or possessor of the instant land, died on February 17, 2003, and the Plaintiffs belonged to the 00-way property according to the inheritance share ratio stated in the attached inheritance share sheet.

2. Determination as to whether the transmission00 and the collection00 are the same person

원고는 피고 채00이 이 사건 토지들에 관한 구토지대장상의 송성00(松城00)과 동일 인이라고 주장하고, 이에 대하여 피고는 동일인이 아니라고 다투는바, 이 사건 판단의 전제로서 원고가 주장하는 피고 채00과 위 구토지대장상의 송성00이 동일인인지에 대 하여 우선 살펴본다.

갑1 내지 3호증의 각 카드대장 및 구토지대장에 의하면, 사정명의인인 '蔡00' 이 1942. 2. 20. 씨설정(氏設定, 창씨개명)을 하여 ‘松城00'으로 소유자명이 변경되었고, 을3호증 의 2의 국유재산 권리보전조치 업무실무는 1940. 2. 11. 이후 일본인 명의 재산은 창씨 개명한 한국인일 가능성이 있으므로 무주부동산공고절차를 거쳐 국유화하도록 하고 있 다 . 이에 비추어 보면 당시 강원 00군 00면 00리 일대에 거주하던 ' 蔡' 씨는 ‘松城씨로 그 성을 개명한 것으로 추정되는바, 위 구토지대장에 소유권 이전등록이 되어 있는 '송 성00' 은 한국인 ‘채00' 의 창씨개명한 이름으로서 양자는 동일인으로 판단된다. 3. 원고의 피고 채00에 대한 청구에 관한 판단

(a) Basic facts;

Comprehensively taking account of the statements in evidence Nos. 2, 3, and 5, the witness of the first instance trial, the witness 00, and the witness 00 above-mentioned witness's purpose of body prior to the oral argument (including the fact that there is no dispute between the parties concerned), each of the land in this case was purchased and occupied by the defendant 00, and sold it to the non-party 100, and the land and the ground house were sold to the non-party 100 in 1959, and the above 00 was occupied and cultivated by the above 00, which was purchased 00, which was the deceased of the plaintiffs, around February 1963, and the above 00, the above 00,000 were occupied by cultivating the above land as capital reduction, math, math, and path on February 17, 2003, and the plaintiffs who were his inheritors had possession of each house and garden up to now.

(b) Markets:

According to the above facts, the above 00, from February 1963, is presumed to have occupied the land of this case in peace and public performance from the point of view of possession, and the acquisition by prescription was completed at the latest on February 1983 with a limit of at least 20 years thereafter, and the above 00, which is the owner registered at the time of the completion of the acquisition by prescription, shall be deemed to have acquired the right to claim the transfer registration of ownership against the land of this case against the defendant 00, who is the owner registered at the time of the completion of the acquisition by prescription (as seen in the above, the transfer 00 on the old land ledger was opened by 00 in Korea, so the owner of the land of this case at the time of the acquisition by prescription shall be 00). Accordingly, the defendant 00 is obligated to implement the transfer registration procedure on the land of this case to the plaintiffs, who are the heir of the above 00, unless there are any special circumstances.

4. Determination on the claim against Defendant Republic of Korea

A. Determination on the main defense of this case

Defendant Republic of Korea and Defendant Republic of Korea also take national measures against the instant land pursuant to Article 8 of the State Property Act because it is impossible to verify the legitimate owner of the instant land, and Defendant Republic of Korea’s claim to confirm that the instant land is owned by the competent source as above against a non-qualified person. The Plaintiffs did not have any right to standing to sue because there is no evidence to prove the substance, donation, sale, inheritance, etc. of the dispatching source, and there is no evidence to prove that the Plaintiffs were owned by the said non-qualified person. Thus, the instant lawsuit against the Republic of Korea to the effect that the Plaintiffs claim to confirm that the instant land is owned by 00 is owned by the said non-qualified person is an unlawful lawsuit

On the other hand, in a lawsuit for confirmation, a person who has the interest in confirmation as to the claim shall be standing to sue, and a person who has an objection to such confirmation shall be standing to sue, and a person who has an objection to such confirmation shall be entitled to be the defendant. However, the plaintiffs try to exercise the right to claim for ownership transfer registration based on the completion of the prescriptive acquisition as to the land in this case against the 00 (Songsung00) registered as the owner on the registry at the time, and if the registration of the ownership of the Republic of Korea was valid on the register in 2003, the plaintiffs shall not exercise their rights. If the ownership registration of the Republic of Korea is valid on the register in 200, the Republic of Korea shall not be allowed to exercise their rights, and the Republic of Korea's Republic of Korea's ownership registration is disputed by denying that the plaintiff is not the same person, but the plaintiff and the defendant

Therefore, the defendant Republic of Korea's defense is without merit.

B. Judgment on the merits

(1) Determination on ownership relations

제1심 법원의 인제군에 대한 사실조회결과에의하면, 이 사건 토지들에 관 한 토지대장의 근거가 되는 갑3호증의 구토지대장들은 1910 . 8. 23. 제정된 토지조사법 및 1912. 8. 13 . 제령 제2호로 발포된 토지조사령에 의하여 1910년에서 1918년 토지조 사사업 당시 작성된 것으로, 이에 따라 사정이 확정된 경우 토지사정을 받은 자는 그 토지를 원시적으로 취득하고(대법원 1983. 10. 25. 선고 83도2118 판결, 1984. 1. 24. 선 고 83다카1152 판결 참조), 1945년 소유권이전등록이 된 경우, 그 당시 시행되던 구토 지대장규칙상 국유지의 불하, 교환, 양여 또는 미등기토지의 수용에 인한 경우나 미등 기토지를 국유로 하는 경우 외에는 등기공무원의 통지가 있기 전에는 토지대장에 소유 권의 이전을 등록하지 못하게 되어 있으므로, 그 소유권이 이전된 것으로 등재되어 있 으면 그 당시 적법하게 소유권이 이전된 것으로 보지 않을 수 없는바(대법원 1994. 11. 11. 선고 94다14933 판결 참조), 위 구토지대장의 기재에 의하면 앞서 살펴본 바와 같 이 채00(蔡00, 松城00) 이 사정을 받고 그 후 채00(松城00) 이 소유권 이전 등록을 하였으 므로, 위 길00이 이 사건 토지들에 관하여 점유취득시효를 완성할 당시의 공부상 소유 자는 일응 피고 채00이라 할 것이고, 달리 이를 뒤집을 뚜렷한 반증이 없다 .

(2) Judgment on the defendant's assertion

The defendant Republic of Korea asserts that since the name of the owner of the land in this case is Japan, the land in this case belongs to the Republic of Korea pursuant to Article 8 of the State Property Act, the registration of ownership in the Republic of Korea is valid in accordance with the substantive relations.

However, the property belonging to the State in Japan was owned by the Japanese owner, who was actually limited to the Japanese owner and originally owned by the Japanese owner. However, it cannot be said that the property owned by the Japanese owner was reverted to the State only to the property that appears to be owned by the Japanese owner due to the possession of a scambling. Thus, the registration of transfer of ownership completed to the Republic of Korea on August 25, 2003 is null and void as the owner of the land in this case continues to be the defendant, and the above assertion by the defendant Republic of Korea is without merit.

(3) Sub-decisions

Therefore, Defendant Republic of Korea has a duty to verify that the ownership of the instant land belongs to Defendant 00, and the Plaintiffs, as the creditors of Defendant 100, can seek confirmation of the ownership of Defendant 1’s Republic of Korea by subrogation of Defendant 200. Thus, the Plaintiffs’ claim against the Defendant Republic of Korea for such confirmation has merit.

5. Conclusion

Thus, the defendant 00 is not entitled to implement the registration procedure for transfer of ownership on the land of this case to the plaintiffs who are the inheritors of the deceased 00, according to their respective inheritance shares, and the defendant Republic of Korea has a duty to confirm that the owners of the land of this case are the defendant's estate. Thus, the plaintiffs' claim of this case is justified, and the decision of the court below that has different conclusions is unfair, and it is so decided as per Disposition.

Yellow-gu (Presiding Judge)

Kim Jong-soo

Kim Jin-ok

List of Real Estate

1. 00 00 Myeonwon, 00 Myeonwon 936-1 ga 310 m;

2. Mate of 00 square meters in the 00-Gun of Gangwon, 00 square meters in the 00-Gun of Gangwon, 936-3 146 square meters in

3. 00 00 Myeonwon, 937-1 233 Myeonwon;

4. Mate of the bankruptcy of 00 Myeonwon, 00 Myeonwon, 937-3, and 838 m.;

5. Mate of the bankruptcy of 00 Myeonwon, 00 Dowon, 937-4 289 m2;

6.Woowon 00 00,000 No. 937-5 150 m. end

Table of Inheritance Share Ratio

1. Plaintiff 10: 3/11

2. Plaintiff 00: 2/11

3. Plaintiff 00: 2/11

4. Plaintiff 00: 2/11

5. Plaintiff 00: 2/11