Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Republic of Korea and three others (Attorney Kim Jong-ju, Counsel for the plaintiff-appellant)

August 24, 2012

Daegu District Court Decision 2010Kadan2174 Decided January 31, 2012

1. Revocation of a judgment of the first instance;

All of the plaintiff's lawsuits of this case are dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance court shall be revoked. Defendant 2, Defendant 4 consented to the Plaintiff’s correction in the part (b) of the ship connecting each of the items in (a) of the indication in the cadastral record of 1,345 square meters on the road of 1,345 square meters in Nam-gu, Seocheon-gu, Seoul ( Address 4 omitted) (hereinafter “the road of this case”) in sequence with each point in (b) the indication in the attached Table 1 through 20,345 square meters (hereinafter “the road of this case”). The Defendant’s appraisal in the above land is not owned by the Defendant’s Republic of Korea, and the part (b) of the attached Table 21 through 40,11, 11, 12, 13, 14, 15, 16, and 11 are not owned by the Defendant’s Republic of Korea.

1. Facts of recognition;

The following facts are not in dispute between the parties, or may be recognized by comprehensively taking into account the respective descriptions of Gap evidence 1, 2, Eul evidence 1, 5, Eul evidence 1, 2, and 3 (including paper numbers) or the overall purport of video and oral arguments:

A. On December 12, 2007, the Plaintiff purchased at 10,176, 149, and 449, prior to ( Address 1 omitted), 149, and 249, prior to ( Address 2 omitted) in the auction procedure for real estate rent in the Daegu District Court Branch of the Daegu District Court at 2007, 411, and completed the registration of ownership transfer.

B. A neighboring each real estate owned by the Plaintiff, Defendant Republic of Korea owns the instant road; Defendant 2 owned the instant road with a large of 507 square meters ( Address 6 omitted); Defendant 2 owned a large of 11,504 square meters ( Address 7 omitted); Defendant New Airport Co., Ltd. owned an orchard of 11,504 square meters; and Defendant 4 owned an area of 1,325 square meters prior to ( Address

C. On December 15, 1930, the road of this case was registered in the forest of Yancheon-gu, Namcheon-do ( Address 5 omitted), and the land category was changed from March 20, 1958 to the road before the beginning, and the defendant Republic of Korea completed the registration preservation on June 25, 199.

2. The plaintiff's assertion

The road of this case is identical to the part on board (i) where the location and boundary in the cadastral map of the road of this case are connected each point of (1) through (20, and 1 of the annexed table No. 1. However, the road of this case exists on the right side of the road of South-gu, Yong-gu, Seoul, ( Address 3 omitted) at the port located on the right side of the land owned by the plaintiff, and the right location and boundary of the road of this case are identical to the part on board (b) where the appraisal of the attached table No. 21 to 40, and 21 are successively connected each point of (1). Nevertheless, the current cadastral map was prepared by mistake that the location and boundary of the road of this case exist between the land owned by the plaintiff as above on the left side of the road of 407-1. Accordingly, the plaintiff sought a judgment against the defendants as stated in the

3. Determination on the legitimacy of the instant lawsuit

A. Defendant Republic of Korea asserts that there is no benefit in confirmation that the portion of the attached Table 1,9, 10, 11, 12, 13, 14, 15, 16, and 1 among the roads of this case (B) is not owned by the Defendant Republic of Korea and that the area of 783 square meters is not owned by the Defendant Republic of Korea, and that it is not a road, and that there is no benefit in confirmation. Defendant New Daily Co., Ltd. and Defendant 4 asserted that the Plaintiff, who is not the owner of the road of this case, has no legal right to apply for a direct correction by the original copy of the final judgment substituting the right to request a correction of the registered matters in the cadastral record of this case or the consent of the owner of the road of this case.

B. First, we examine the legitimacy of the instant lawsuit against the Defendant Republic of Korea.

A lawsuit for confirmation is permitted when the plaintiff's right or legal status is in danger, and it is the most effective and appropriate means to resolve the dispute (see, e.g., Supreme Court Decision 97Da54024, Sept. 17, 199). If a landowner finds that there was an error in the registered matters in the cadastral record, he/she may file an application for correction with the competent cadastral authority. If the boundary of neighboring land is changed due to the correction, he/she may request the competent cadastral authority to express his/her consent (Article 84(1) and (3) of the Act on Land Survey, Waterway Survey and Cadastral Records). Thus, even if the location and boundary of the road in the cadastral record are registered erroneously as the plaintiff's assertion, the lawsuit for confirmation is not against the plaintiff's owner of the adjacent land in order with the permission of the owner of the adjacent land ( Address 1 omitted) and thus, it does not require the competent cadastral authority to correct the location, boundary, size, etc. of his/her own land.

C. Next, we examine the legitimacy of the instant lawsuit against the Defendants other than Defendant Republic of Korea.

As seen earlier, in a case where there was an error in the registered matters in the cadastral record, a landowner may file an application for the correction with the competent cadastral authority, and in a case where the boundary of a neighboring land is changed due to such correction, a landowner may file a request against the neighboring land owner for the declaration of consent without the consent. As long as the Plaintiff is not the owner of the road of this case, even if he/she obtained the consent to correct the location and boundary of the road of this case against the Defendants, it cannot be corrected in favor of the Plaintiff as well as the road of this case, and the location, boundary, etc. of the land owned by the Plaintiff. Therefore, insofar as there is no interest in the protection of the Plaintiff’s right against the remaining Defendants, as long as the Plaintiff is not the owner of the road of this case, so long as the Plaintiff did not have the right to seek for the declaration of consent to correct the cadastral record of this case, the remaining Defendants

4. Conclusion

Therefore, the lawsuit of this case is dismissed in its entirety, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by cancelling the judgment of the court of first instance and dismissing all of the plaintiff's lawsuit of this case.

[Attachment]

Judges Choi Young-young (Presiding Judge)