Whether there is a presumption of right in the entry of the owner of land cadastre restored before the amendment of the Cadastral Act on December 31, 1975

Before the enforcement of the Cadastral Act amended by Act No. 2801 of Dec. 31, 1975, the land cadastre arbitrarily restored for convenience of taxation without any legal basis by the competent authorities cannot be recognized as the presumption of rights in light of the provisions of Article 10 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 11998 of Nov. 3, 1986), Article 6 of its Addenda, etc.

Article 13 of the Cadastral Act; Article 10 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 11998, Nov. 3, 1986); Article 6 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 11998, Nov. 3, 1986)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee) 92Da4947 delivered on April 13, 1993 (Gong1993Sang, 1382) and 93Da15779 delivered on September 14, 1993 (Gong193Ha, 2769)

Plaintiff

Korea

Suwon District Court Decision 94Na9105 delivered on February 10, 1995

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below found, based on the evidences of the time, that 39 square meters of Gyeonggiwon-gun ( Address omitted) and 39 square meters of the land before the division of the land of this case and the change of administrative district were registered as owned by the deceased non-party 1 on the old land cadastre, but remains unregistered due to the destruction of the registry during the 6.25 incident, and that the above deceased non-party 1 was living together with the plaintiff who was his wife and his wife, and determined that the land of this case was registered as owned by the deceased non-party 1 on the register destroyed from the original 6.25 incident.

Article 10 of the Cadastral Act (Act No. 165) and its Enforcement Decree, which took effect from December 1, 1950, did not provide for the restoration of the destroyed cadastral record. Article 10 of the Enforcement Decree of the Cadastral Act (Act No. 2801) which took effect from December 31, 1975, based on Article 13, provides that when restoring the cadastral record under Article 10 of the Enforcement Decree of the same Act, the competent authority shall register the restoration of the matters regarding the indication of land, but the matters concerning the owner shall not be registered without recourse to the real estate register or final judgment. Article 6 of the Addenda of this Decree provides that the matters concerning the indication of land in the cadastral record as at the time of entry into force of this Decree shall apply to those whose owner has not been restored (including those with the owner’s own indication at will). Thus, even if the competent authority arbitrarily restored the land without any legal basis before the enforcement of the amended Cadastral Act, the competent authority’s decision cannot be recognized in light of Article 19319 of the Addenda Act.

However, the above old land cadastre (No. 1-1-2) which appears to have been registered as owned by the above deceased non-party 1 on the register destroyed during the Korean War No. 6.25 incident, appears to have been restored to the above revised Cadastral Act (No. 2801 of the Act) before the enforcement of the Act (No. 2801 of the Act) after the cadastral record was destroyed due to an incident of June 25, 200, and therefore, there is no presumption of right on the ground of the above-mentioned deliberation.

In addition, it is insufficient to recognize that the land of this case is owned by the deceased non-party 1 solely on the ground that the deceased non-party 1 was living together with the non-party 2, his wife, and the plaintiff, his wife, and his father.

Nevertheless, the court below held that the land of this case was registered as the ownership of the deceased non-party 1 on the old land cadastre, and that only the fact that the deceased non-party 1 was living together with the plaintiff who was his wife and the non-party 2, his wife, and his father, and that the land of this case was registered as the ownership of the deceased non-party 1 on the original register destroyed during the 6.25 incident, it was erroneous in the misapprehension of legal principles as to the presumption of right to the restored land cadastre or in the misconception of facts contrary to the rules of evidence, which affected the conclusion of the judgment. Thus, the argument that points this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)