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(영문) 대법원 1997. 4. 25. 선고 97다4838 판결
[소유권이전등기][공1997.6.1.(35),1594]
Main Issues

[1] The degree of proof to reverse the presumption of registration under the former Act on Special Measures for the Registration, etc. of Ownership Transfer

[2] The meaning of possession of goods, and the criteria for transferring and continuing possession of forest land

Summary of Judgment

[1] Where registration under the former Act on Special Measures for the Registration, etc. of Transfer of Real Estate (Invalidation by Act No. 3562) has been completed in accordance with due process under the same Act, it shall be presumed that the registration conforms to the substantive relationship, and thus, the person who has filed a lawsuit for the cancellation of the registration is responsible for asserting and proving the presumption actively, but where there is proof to suspect that the substantive contents of the guarantee or the certificate, which forms the basis of registration, are not true, the presumption of registration shall be deemed to have been reversed, and the degree of proving the falsity of such guarantee, etc. shall not be sufficient to the extent of judge's conviction (where the date of sale in the certificate of guarantee is after the death of the seller and the guarantor is aware of such fact, and only the certificate of sale in the name of the heir is reported and signed and sealed on the certificate of guarantee, such guarantee is falsely prepared, and the presumption of ownership transfer registration is reversed based

[2] The possession of a thing refers to the objective relationship that appears to be in a person's factual control under the social concept, and therefore, in order to have a de facto control, it does not necessarily mean that the thing is physically and practically controlled, but should be judged in conformity with the social concept by considering the time and spatial relationship with the thing, the principal right relationship with the person, the possibility of exclusion from others' control, etc. In particular, the transfer of possession or the continuation of possession of forest land does not necessarily require physical and realistic control, and it should be deemed that there has been delivery of possession of forest land when there is transfer of management or use, and if the ownership of forest land is transferred, it shall be deemed that the possession of control over possession of forest land is a common form in the transaction (the case where another land was constructed as one land after the purchase of the land in question and its surrounding area was used after the purchase of the land in question, and a fence was constructed and continuously occupied).

[Reference Provisions]

[1] Article 6 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate, Article 186 of the Civil Act / [2] Articles 192 and 196 of the Civil Act

Reference Cases

[1] Supreme Court Decision 95Da57490 delivered on March 11, 1994 (Gong1994Sang, 11185), Supreme Court Decision 95Da50738 delivered on February 23, 1996 (Gong1996Sang, 1073), Supreme Court Decision 95Da1184 delivered on April 23, 1996 (Gong196Sang, 1556), Supreme Court Decision 96Da31024 delivered on November 15, 1996 (Gong1997Sang, 197Sang, 1992) / [2] Supreme Court Decision 91Da38266 delivered on June 23, 199 (Gong192, 2239) 197Da1963197 delivered on July 16, 195 (Gong197Da196379 delivered on July 196, 1997)

Plaintiff (Appointedd Party), Appellee

Plaintiff (Appointed Party)

Defendant, Appellant

Dae Young Industrial Co., Ltd. (Attorney Yoon Young-young, Counsel for defendant-appellant)

Judgment of the lower court

Jeju District Court Decision 96Na952 delivered on December 13, 1996

Text

The part of the judgment below against the defendant is reversed and that part of the case is remanded to the Jeju District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. On the second ground for appeal

A. Summary of the judgment below

According to the reasoning of the judgment below, since the above registration of ownership transfer was completed on the above 196,814 square meters of the above 194 square meters of the above 1962 and the above 1961 square meters of the above 6th of the 4th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 196th of the 198.

(b) Markets:

The registration under the Act on Special Measures is presumed to be completed in accordance with the lawful procedures prescribed in the same Act, and is accordingly presumed to be in accordance with the substantive relationship. Therefore, even though there is a burden of assertion and proof to reverse the presumption actively to the person who filed a lawsuit for the cancellation of the registration, if there is proof to suspect that the substantive contents of the letter of guarantee or written confirmation, which forms the basis of the registration, are not true, the presumption of registration shall be deemed to have been reversed. The degree of proof of the falsity of such a letter of guarantee or written confirmation shall not be required to the extent that the judge's conviction is not sufficient (see, e.g., Supreme Court Decisions 95Da50738, Feb. 23, 1996; 93Da57490, Mar. 11, 1994). In comparison with the records, the above fact finding by the court below is just, and if the factual relations are identical to the above, it shall be proved that the above certificate of guarantee or written confirmation of transfer of ownership in the original land was not reversed.

2. On the first ground for appeal

According to the judgment of the court below, the court below rejected the defendant's assertion that the above Han River water purchased the original land of this case on August 16, 1974 from the above Han River water and occupied it in peace and public performance as owner's will from that time, and since the above Han River water possession succeeded in order through the above heir's awards and decorations, it is difficult to recognize that the above Han River water's possession transfer registration in the defendant's name is valid registration in accordance with the substantive legal relationship due to the completion of the prescription period of possession on August 16, 1994, which was 20 years since August 16, 1994, since the above Han River water was occupied by the defendant's heir, it was hard to recognize that the above Han River water purchased the original land of this case, including the original land of this case, and since it was hard to recognize that the above Han River water was occupied by the witness's own wall of this case with the knowledge that there was no change in the boundary of the original land of this case.

However, the court below's rejection of the defendant's possession of the original land of this case is just and persuasive.

The possession of a thing refers to the objective relationship that is considered to be a factual control of a person under the social concept, and is in de facto control, it is not necessarily the mere physical and real control of a thing. In order to say that there is a de facto control, it shall be determined in accordance with the social concept by taking into account the time and spatial relationship with the thing, the principal right relationship with the person, the possibility of excluding others from others’ control. In particular, it shall not be deemed that the transfer of possession of forest land or the continuation of possession does not necessarily require physical and realistic control, but it shall be deemed that there was delivery when the management or use is transferred, and in case of transfer of ownership of forest land, it shall be deemed that there was an ordinary form in the transaction (see Supreme Court Decisions 91Da38266, Jun. 23, 1992; 96Da19512, Sept. 10, 1996, etc.).

However, according to the result of the first instance trial that did not dismiss the lower court's rejection, "one hundred and seventy meters away from the entrance of the above-mentioned land for the above-mentioned tourism ground," and the above-mentioned land for the above-mentioned tourism ground was purchased at the point of view, and there was a horse race track at the level of 100 meters from the entrance of the road, and the roads within the hunting ground are packaged for asphalt, and if there were about one point of view according to its asphalt roads, the above-mentioned land for the above-mentioned tourism ground was purchased at the point of view that about 50 meters away from the above-mentioned land for the above-mentioned tourism ground, and the above-mentioned land was purchased at the point of view that there was about 90 meters away from the above-mentioned land for the above-mentioned tourism ground to the point of view that the above-mentioned land was purchased at the point of view of about 90 meters away from the above-mentioned land for the above-mentioned tourism ground to the point of view that there was about 90 meters away from the above-mentioned land (the above 9th forest land).

Nevertheless, the court below rejected the witness's testimony, etc. that corresponds to the possession of the original land of this case without any justifiable reasons clearly acceptable, such as the fact that the above Han Han River has occupied the original land of this case, without any justifiable reasons, is erroneous in the misunderstanding of facts against the rules of evidence or in the misapprehension of the legal principles as to possession of forest land, and since such illegality has influenced the judgment, the ground of appeal pointing this out has merit. The ground of appeal pointing this out is with merit.

3. Therefore, the part of the judgment of the court below against the defendant is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)

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심급 사건
-제주지방법원 1996.12.13.선고 96나952
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