The presumption of registration of preservation of ownership and burden of proof made under the Act on Special Measures for the Registration of Forest Ownership;

(Majority Opinion)

With respect to a forest for which registration of preservation of ownership has been made pursuant to the Act on Special Measures for the Transfer of Forest Ownership (Act No. 2111), the registration shall be completed in accordance with the lawful procedures prescribed in the same Act, and shall be presumed to have been completed in accordance with the substantive legal relationship. Therefore, a person who intends to file a lawsuit for the cancellation of registration of preservation of ownership, which has been made pursuant to the same Act, shall assert and prove that the certificate of guarantee and confirmation document prescribed in Article 5 of the same Act, which is a document attached by the title holder of registration of preservation of ownership, were false or forged, or that the registration of preservation of ownership has not been duly made in accordance with the same Act due to any other reason.

(Dissenting Opinion)

In our legal system, real estate registration has a de facto presumption of the matters to be stated, and it does not have a legal presumption of the matters to be registered, so even if there is no counter-proof of the matters to be registered, it does not have a real presumption of the truth until the fact that the matters to be registered are not legally constituted in accordance with the law is proved (proof). In addition, there is no reasonable ground that the real estate registration under the above special law is more obvious in light of the identity of the truth of the general real estate registration, and that it is reasonable to give superior presumption power to the registration under the above special law compared with that of the general real estate registration, and giving superior presumption power to the registration based on the guarantor's guarantee will have a great influence on the free trial securities of the judge. Therefore, even if the person who registered the preservation of the ownership under the above special law is the person who was transferred the ownership from the owner before the preservation registration is made, and if the former owner denies the transfer of the registration to the person who registered the preservation of the ownership, it should be presumed that the registration of the preservation registration is presumed to be owned by the person.

[Judgment of the Supreme Court: 80Da1043, Nov. 23, 201; 83.07.26. 26. 82∑607, etc.]

Article 10 of the Act on Special Measures for the Registration of Forest Ownership (repealed by Act No. 2111), Article 186 of the Civil Act

Supreme Court Decision 78Da564 delivered on December 13, 1978 (Dong-dong) 82Da605 delivered on February 22, 1983 (Dong-dong) 82Da605 delivered on April 10, 1984 (Dong-dong) 80Da1043 delivered on November 23, 1982 (defluence) (defluence) 82Da607 delivered on July 26, 1983 (defluence)

Plaintiff 1 et al., Counsel for the plaintiff-appellant

Defendant 1 and one other Defendants, Defendant 1 et al., Counsel for the defendant-appellant-appellee)

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the grounds of appeal by the plaintiff, the registration of preservation of ownership under the Act on Special Measures for the Registration of Forest and Forest Ownership shall be presumed to be a registration consistent with the substantive legal relationship even if the person to whom the forest has been affected has been otherwise found to exist. In other words, according to Article 10 of the aforesaid Act, the acquisitor or his agent who did not register the unregistered forest with the right from the person holding the land cadastre or land cadastre shall submit a guarantee certificate issued under Articles 5 through 7 of the aforesaid Act and a confirmation document, and shall obtain registration of preservation of ownership along with a certified copy of the said book. The registration of preservation of ownership under the above Act on Special Measures for the Registration of Forest and Forest Ownership is presumed to be a registration completed in accordance with the substantive legal relationship. The registration of preservation of ownership under the above Act on Special Measures for the Registration of Ownership has to be presumed to be a registration completed in accordance with the above Act on Special Measures for the Registration of Ownership, and the registration of preservation of ownership should be presumed to be completed in accordance with the previous Act on Special Measures for the Registration of Ownership 2. 3.

According to the reasoning of the judgment below, the court below acknowledged the following facts based on the adopted evidence and found the fact that the 8th 8th 1, 1970 forest land report, which was the original land before division, was the circumstances of the deceased non-party 1, and that the defendant 1 sold it to the defendant 2 and completed the registration of ownership transfer under the name of the defendant 2 in accordance with the Act on Special Measures for the Registration of Forest Ownership, which was in force at the time of December 10, 1970 after the completion of the registration of ownership transfer under the name of the defendant 1 and completed the registration of ownership transfer under the name of the defendant 2 in accordance with the Act on Special Measures for the Registration of Forest Ownership, and rejected the plaintiff's claim for the cancellation of the above registration on the premise that the registration of ownership preservation is presumed to be consistent with the substantive legal relationship, on the basis that there was no evidence to prove that the above judgment of the court below is just and there was no presumption of the registration and the burden of proof.

2. The court below held that Defendant 1’s father, Nonparty 2, from around 1920 to 1920 with respect to the real estate listed in the attached list No. 3 of the judgment of the court below, acquired the right to claim ownership transfer registration on the ground of the period of acquisition of ownership of real estate due to possession without distributing farmland by reporting the land as one of his own farmland at the time when the Farmland Reform Act enters into force, the right to claim ownership transfer registration can be exercised against the plaintiff by Defendant 2 who succeeded possession through Defendant 1. Thus, there is no misapprehension of the legal principles as to the possession of real estate, such as the theory of lawsuit,

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party, and there is a dissenting opinion by Justice le-be and Justice Lee Dong-seok on the presumption of registration of ownership preservation made under the Act on Special Measures for the Registration of Forest Land Ownership. It is decided as per Disposition by the assent of all participating Justices

Justices Yoon Yoon-tae and Lee Dong-tae are as follows.

Our legal system generally approves that it is difficult to presume that any entry in the registration would be true if the registration is made without public confidence in the real estate registration, and such presumption power of registration is recognized based on such probability because there is no clear basis, but the registration is guaranteed to reflect the truth in accordance with the systematic strict procedural regulations, and it is highly probable that there is a legal relationship as the registration is made.

As long as the basis for the presumption of the registration is the same, the registration has a de facto presumption of the matters to be entered, and it does not have any legal presumption, so it does not have the presumption of the truth until it proves (proof) that the matters to be registered are true only to the extent that there is no proof against the law, and it is not true until it proves that the matters to be registered have not been duly registered under the law

The restriction of the scope and degree of the presumption of registration is consistent with the principle of party and the principle of pleading, which is the ideology of the litigation system, because it does not interfere with the free formation of conviction by the judge concerning the fact-finding in the real estate registration related litigation.

The majority opinion argues that the ownership of the person who registered the preservation of real estate is presumed to have been transferred to the person who registered the preservation of real estate due to the destruction of the majority opinion. However, if the former owner denies the transfer of ownership to the person who registered the preservation of real estate, the presumption of ownership should be presumed to have been broken due to the former owner's registration (73Da1658 delivered on February 26, 197; 66Da64,65 delivered on March 22, 196; 64Da641 delivered on October 27, 1964). The majority opinion held that it is reasonable to apply the presumption of ownership by the former Act on Special Measures for the Registration of Real Estate to the parties for the Registration of Real Estate's Ownership, and that the former owner's registration should be presumed to have been legally presumed to have been based on the presumption of ownership registration under the former Act on Special Measures for the Registration of Real Estate's Ownership, etc. and that the latter's legal status should not be proved by the former Act on Special Measures for the Registration of Ownership.

However, there is no reason to find where it is reasonable to grant the superior presumption power to the registration under the Act on the Special Cases.

Of course, in order to register under the Special Act, the registration under the special Act shall be certified as the current owner (or not registered) at the time of preparation of a letter of guarantee by the guarantor who limited the qualifications (in the case of farmland, 2 persons in the case of forest, 3 persons in the case of forest, 50 days in the case of farmland) and personnel (in the case of farmland, 50 days in the case of farmland) under the special Act, and the head of the Si/Gun/Gu having jurisdiction over the location of the relevant farmland, forest, or forest, or the head of the Si/Gun shall issue a letter of guarantee by public announcement of the contents of the letter of guarantee at the time of preparation of the letter of guarantee by the relevant laws and regulations, by changing the title in the original land register or land cadastre, and there is a punishment law for the purpose of preventing preparation of a letter of guarantee inconsistent with the above facts. However, this is no more reasonable, for example, to guarantee the possibility that the general real estate registration is incomplete in the registration procedure. Furthermore, this is more reasonable than the above legal requirements such as a written request or rejection of the application.

In the registration under the special provisions, the requirements for the above letter of guarantee and the confirmation requirements should be made by the original acquisitor of the real estate or by the person who succeeded to the right from the original acquisitor of the real estate, if the registration of ownership preservation has not been made due to the unregistered registration of the real estate concerned or other unavoidable circumstances, opening the way to recognize the preferential rights of the real estate concerned and make the registration of ownership preservation in a simple procedure for that person, but it would be meaningful to set the compensation conditions in order to prevent the false registration by taking advantage of the simple composition of the procedure, and it cannot be viewed as the basis for recognizing the superior presumption power to the registration titleholder under the special provisions that the person who is not the original acquisitor.

Furthermore, the establishment of modern real estate registration system in our country is based on the Joseon Civil Order enacted on March 18, 1912 and the Decree on the Registration of Real Estate, which was established on the basis of the establishment of the foundation for the establishment of modern real estate registration system, and the completion of detailed rules and circumstances in accordance with the Land Survey Order enacted on August 13, 1912 for land and some forest land such as farming land, etc., and the implementation of modern registration system from July 1, 1918 to June 15, 1918 for the remainder of the forest land, which was established on the basis of the Act on the Special Measures for the Registration of Real Estate from the date of the completion of the national forest research project to the date of the implementation of the above registration system by the Ordinance on the Registration of Real Estate under the Act on the Special Measures for the Registration of Real Estate to the Guarantee of Rights, which was enacted on the basis of the Act on the Registration of Real Estate from the date of the enforcement of the Act on the Registration of Rights to the 1960th of the Act, which was later than the said Act.

In light of the above, it is reasonable to view that the decision of a party member who intends to abolish the majority opinion should be maintained, and that the decision that the majority opinion intends to maintain should be reversed, and therefore, the original judgment, which is written from the majority opinion, should be reversed. In addition, this opportunity should be added from the theoretical point of view as mentioned above with regard to the degree and scope of the presumption power of real estate registration, the registration of preservation of ownership and other registrations should also be expanded.

Justices Kim Yong-chul (Presiding Justice)