Article 29(1) of the Civil Act does not apply to a person who acquires property from a person who is not entitled to become an inheritor.

Since the above provision intends to protect trust in the adjudication of disappearance, it is reasonable to interpret that the above provision is not applicable to a person who acquires the property of a missing person from a person who is not entitled to become a heir even if the adjudication of disappearance is valid.

2013 Gohap 51038 Registration for cancellation of ownership

OO

Republic of Korea and 12

July 22, 2014

August 26, 2014

Note. Do.

1. The part of the Plaintiff’s motion for acceptance with respect to the registration of cancellation of ownership modification among lawsuits against Defendant AA, BB, CCC, Korea, DD, and EE Savings Bank shall be dismissed, respectively.

2. The Plaintiff:

A. Defendant AA’s text, BB, CCC, Korea, DD, and EE Savings Bank, expressed its intention to accept the registration of cancellation of ownership transfer registration completed under No. 1954 of receipt on January 15, 2004, with respect to each real estate recorded in the column of “the pertinent real estate and the list of the pertinent real estate by Defendant” as indicated in the separate sheet No. 2, the pertinent real estate by Defendant;

B. Defendant FF, GG, HH, and III will implement the registration procedure for cancellation of each registration recorded in the column of “the pertinent list of real estate” recorded in the “instant real estate” column for each of the real estate recorded in the same list.

3. The Plaintiff’s claims against Defendant JJ, KK and SS, and the remainder of the claims against Defendant BB, FF, and GG Co., Ltd. are dismissed.

4. Of the costs of lawsuit, the part between the Plaintiff and Defendant JJ, KK and SS shall be borne by the Plaintiff. The part between the Plaintiff and Defendant AA, BB, CCC, Korea, DD, EE Savings Bank, FF, and GGG among the costs of lawsuit shall be borne by the Plaintiff 50%, and the said Defendants shall be borne by 50%, and the part between the Plaintiff and Defendant HH and III shall be borne by the Defendants.

The Plaintiff expressed his/her intention of acceptance for each registration of cancellation of ownership modification completed on January 15, 2004 by the Incheon District Court Decision 1954, which had been completed on January 15, 2004, and as of June 26, 2009 by the same registry office, as for each registration of cancellation of ownership modification completed on June 37549. Defendant JJ, KKK, SS, FS, FGG, Defendant GG (hereinafter referred to as “Defendant GG”), H, and H, H, and III are the same procedures for cancellation of each registration of "registration" as to each of the real estate recorded on the “real estate of each of the Defendant in the same list.”

1. Basic facts

A. Acquisition of real estate by the plaintiff

"1) 원고는 1936. 1. 19. 아버지 망 @@@와 어머니 &&& 사이에서 태어났는데, 망 @@@와 그의 법률상 배우자인 망 OPOP 사이에 태어난 자로 출생신고가 이루어졌다. 원고는 출생신고 당시 이름이 'xx' 었으나 1945. 3. 19. 'xX2'로 개명하였다.",2) 망 @@@, 망 OPOP 및 그들의 자녀들은 1940.경 중국 천진으로 이주하였다가1945. 10. 15. 동시에 사망하여, 원고가 망 @@@ 소유의 별지1 '부동산 목록' 제1 내지 21항 기재 각 부동산을 단독 상속받았다. 이에 따라 위 각 부동산에 관하여 원고의 명의로 1945. 10. 15.자 호주상속을 원인으로 소유권이전등기가 마쳐졌다. 또한 원고의 재산관리인 서정철은 1997. 10. 25. 같은 목록 제22항 기재 부동산에 관하여 원고 명의로 소유권보존등기를 마쳤다(이하 위 각 부동산을 합하여 '이 사건 각 부동산'이라 한다).

(b) Declaration of disappearance, transfer registration, etc.;

1) 원고는 1951. 11. 18. 일본으로 이주한 이후 대한민국의 친인척들과 연락이 두절되었다. 망 @@@의 여동생 서xx의 아들인 tx은 서울가정법원 2001느단0000호로 원고에 대한 실종선고 심판을 청구하였고, 위 법원은 2002. 8. 7. 원고가 1950. 6. 30. 이후 5년 이상 생사가 불명하다고 판단하여 1955. 6. 30. 실종기간 만료로 인한 실종을 선고하였다.

2) tx을 비롯한 망 @@@와 망 OPOP의 친족들은 자신들이 원고의 상속인이라고 주장하며 이 사건 각 부동산에 관하여 인천지방법원 부천지원 김포등기소 2004. 1. 15. 접수 제1954호로 1955. 6. 30.자 재산상속을 원인으로 한 소유권이전등기를 마쳤다(이하 '이 사건 소유권이전등기'라 한다). 위 등기에 관하여 2007. 11. 29., 2008. 12. 11., 2009. 6. 26. 각 신청착오를 원인으로 공유자 일부 및 지분을 정정하는 내용으로 소유권 경정의 부기등기가 마쳐졌다.

3) Since then, each registration in the name of the Defendants was completed as stated in the [Attachment 3] registration status by Defendant with respect to each of the instant real estate.

(c) Judgment of cancellation and cancellation of the adjudication of disappearance;

1) The Plaintiff was alive in Japan, and thus, filed a judgment seeking the revocation of the adjudication of disappearance with the Seoul Family Court 2008 Madan0000, and the above court rendered a judgment to revoke the adjudication of disappearance on October 9, 2009. Tx filed a complaint and reappeal, but all of which were dismissed, and the said judgment became final and conclusive on November 3, 201.

2) Accordingly, the Plaintiff filed a lawsuit seeking the cancellation of the above transfer of ownership registration with the Seoul Central District Court 2008Gahap00000, which is the final nominal owner of the instant transfer of ownership, on December 20, 201. The said judgment became final and conclusive on October 10, 2012.

[Based on recognition] On Defendant CCC, Defendant DD, Defendant Bank, and Defendant III: Confession (Article 208(3)2, Article 150(3), and Article 150(1) of the Civil Procedure Act) as to the remaining Defendants: The fact that there is no dispute, Gap evidence 1 through 5 (including spot numbers, if any; hereinafter the same shall apply), the purport of the entire pleadings

2. Determination on the defense prior to the merits

Defendant clan, since the Plaintiff’s attorney did not have the power of attorney granted from the Plaintiff, the lawsuit of this case is unlawful. However, according to each description of the evidence Nos. 6 and 7, the Plaintiff’s delegation to the two law firms of this case. Thus, Defendant clan’s defense is without merit.

3. Whether a request for consent to the registration of cancellation of ownership revision is lawful;

The Plaintiff, among the Defendant literature, sought the declaration of consent on June 26, 2009 on the cancellation registration of ownership modification registration as of June 26, 2009, which was completed in relation to the registration of ownership transfer of this case from among the Defendant literature, BB, CCC, Korea, DD and Defendant bank.

The supplementary registration of correction of ownership transfer registration is dependent on the existing main registration of ownership transfer registration and is integrated with the main registration, and it is not a new registration separate from the main registration. Thus, in the event that the ownership transfer registration or the subsequent revised registration is null and void, if the cause thereof is sought for cancellation of the above main registration, it is necessary to cancel the main registration ex officio if the main registration is cancelled without any separate request for cancellation. Thus, the claim for cancellation of the above supplementary registration is an unlawful claim without benefit of lawsuit (see Supreme Court Decision 2001Da4903, Apr. 13, 2001). According to the above legal principle, there is no benefit of lawsuit seeking acceptance of the registration of cancellation of the supplementary registration. On the contrary, Supreme Court Decision 92Da39167, Nov. 13, 1992, which is claimed by the Plaintiff, is different from the case where the original registered titleholder changed his/her indication against the new registered titleholder. Therefore, the conclusion can not be applied.

Therefore, among the plaintiff's lawsuit against the above defendants, the part of the request for consent to the registration of cancellation of ownership revision is unlawful.

4. Determination on the remainder of claims

A. Determination on the cause of the claim

As seen earlier, inasmuch as the adjudication to revoke the adjudication of disappearance of the Plaintiff who was the owner of each of the instant real estate became final and conclusive, the registration of the ownership transfer in this case and each of the registrations in the names of the Defendants that were completed on the grounds of the death deeming by the adjudication of disappearance is null and void. Therefore, barring any special circumstance, the Plaintiff is obliged to cancel the registration of the cancellation of the ownership transfer registration in this case as the third party having interests in the registration, and ② Defendant JJJ, KK, KK, SS, FF, GG, HH, and III are obligated to cancel the registration of the ownership transfer in their names, provisional registration, and the registration of the establishment of a mortgage in this case.

B. Determination as to the assertion of the Defendant’s door

Since the Defendant’s text argues that the Plaintiff does not have an obligation to accept the registration of ownership transfer based on the termination of title trust, which is a substantive right under the substantive law. However, there is no evidence to acknowledge the title trust relationship between the Plaintiff and the Defendant’s text. Rather, according to the evidence evidence No. 5, the Defendant’s text filed a lawsuit for ownership transfer registration against tx, etc., which is the nominal owner of the instant ownership transfer registration, on September 20, 2007, on the ground that each of the said real estates cannot be deemed as having been owned by the Defendant’s text and deemed to have been a title trust, it is recognized that the Incheon District Court Branch Branch of the Incheon District Court (Seoul District Court Decision 2005Na0000 and November 14, 2008) was sentenced to a judgment against each of the said real estates by Seoul High Court (Seoul High Court 2007Na0000, Dec. 24, 2008).

Therefore, the argument of the defendant is without merit.

C. Determination as to Defendant BB, Korea, JJ, KK, KS, SS, FG, GG, and HH’s assertion

1) The above defendants asserts that the registration of each of their names is "an act done in good faith after the declaration of disappearance" and thus is valid.

The Korean Civil Code recognizes the retroactive effect of the cancellation of the adjudication of disappearance while protecting those who acted in trust in the adjudication of disappearance, the proviso of Article 29(1) to "act done in good faith after the adjudication of disappearance" does not affect the retroactive effect of the cancellation of the adjudication of disappearance. In this case, the "faith" means acquiring the property of the missing without knowing that the adjudication of disappearance is contrary to the facts at the time of the act, and it is not possible to ask whether the missing person is negligent or not.

As seen earlier, after the Plaintiff moved to Japan on November 18, 1951, a long-term liaison was interrupted. Accordingly, not only the Plaintiff’s relatives but also the said Defendants, who do not have any personal relationship and relationship with the Plaintiff, could not have known that the Plaintiff is alive. Therefore, the said Defendants were bona fide.

2) However, since the above provision intends to protect trust in the adjudication of disappearance, it is reasonable to interpret that the above provision is not applicable to a person who acquires a missing person’s property from a person who is unable to become an heir even if the adjudication of disappearance is valid.

(1) In the case of TS and five others:

Article 74 of the Civil Act (wholly amended by Act No. 4199 of January 13, 1990) which provides that "the relatives and degrees between a child born out of wedlock and a father, a blood relative, and a relative by marriage shall be deemed to be the same as the child born by the spouse of the former spouse" (Article 774 of the Civil Act amended by Act No. 4199 of January 13, 1990) shall be deleted by the amendment on January 13, 1990. The relationship between a child born out of wedlock and a father, a relative by blood and a relative by blood and a relative by blood and a relative by blood shall be extinguished from January 1, 191 as of the enforcement date of the above Act, and Article 4 of the Addenda of the Civil Act (Act No. 4199 of January 13, 190) and Article 4 of the Addenda of the Civil Act shall apply to inheritance if the disappearance is declared after the enforcement date of the above Act (Article 12 (2) of the Addenda of the above Act).

이 사건 소유권이전등기의 명의자 중 TS 외 5인은 망 OPOP의 상속인인 사실은 당사자들 사이에 다툼이 없다. 원고는 망 @@@의 혼인 외 출생자인데, 원고에 대한 실종이 위와 같이 개정된 민법의 시행일 이후인 2002. 8. 7. 선고되었으므로, 원고와 망 OPOP 사이의 친족관계는 개정된 민법에 따라 1991. 1. 1.부터 소멸되었다고 할 것이다. 따라서 위 TS 외 5인은 원고의 상속인이 될 수 없다.

(2) In cases of eight persons other than the PX:

In full view of the entries and the purport of the entire pleadings by Gap evidence No. 1, the registration of ownership transfer in this case was completed by mistake that PX 8 persons are included in the plaintiff's co-inheritors, and it is recognized that they were excluded by the registration of change of ownership in December 11, 2008. In light of this, the above PX 8 persons are not the plaintiff's heir.

3) 그렇다면, ① 원고의 상속인이 아닌 TS 외 5인 중 3인 내지 위 PX외 8인 명의의 소유권지분등기에 터잡은 피고 BBB의 2005. 12. 22.자 가압류등기, 피고 대한민국의 각 압류등기, 피고 FFF의 2011. 12. 8.자 지분이전청구권가등기, 피고 QX의 2005. 6. 27.자, 2005. 8. 18.자, 2007. 4. 3.자, 2007. 11. 1.자, 2009. 4. 24.자 각 근저당권설정등기에는 민법 제29조 제1항 단서가 적용되지 아니하나, ② 피고 BBB의 2004. 12. 10.자 가압류등기, 피고 JJJ, KKK, SSS의 각 소유권이전등기, 피고 FFF의 2007. 1. 16.자 소유권이전등기, 피고 GGG의 2006. 1. 17.자 근저당권설정등기는 실종선고 후 취소 전에 선의로 한 행위에 해당하므로 위 규정에 의하여 유효하다. 위 피고들의 주장은 위 인정범위 내에서 이유 있다.

5. Conclusion

Of the Plaintiff’s lawsuits against the Defendant Bank, the part of the Plaintiff’s motion for acceptance of the registration of cancellation of ownership modification registration is dismissed as unlawful. The Defendant’s motion for acceptance of the registration of cancellation of ownership transfer registration against the Defendant, SS Republic of Korea, DDD, Defendant Bank, and Defendant HH and III against the Defendant’s motion for acceptance of the registration of cancellation of ownership transfer registration, and the Defendant’s motion for acceptance of the registration of cancellation of ownership transfer registration against Defendant BB and the FF, and TG are accepted within the above scope of recognition. The Defendant’s motion for acceptance of the registration of cancellation of ownership transfer registration against Defendant JJ, KK and SS and the claim against Defendant FF and TG are accepted within the above scope of recognition. The remainder of the claim against Defendant JJ, KK, and SB, FBB, and