Where it is deemed that there is no heir, whether the property is reverted to the State without undergoing the procedure for reversion of the inherited property pursuant to the inheritor existence system.

In this case where it is proved that there is no heir, the plaintiff's claim for cancellation of the registration of the right to lease on a deposit basis is legitimate, since it belongs to the State without the inheritance reversion procedure

Articles 1053 through 1058 of the Civil Act

Seoul Southern District Court 2016Gadan204107 Action for cancellation of chonsegwon registration

CHAPTER A

Republic of Korea, YellowB, YellowCC

August 26, 2016

September 23, 2016

1. As to real estate listed in the separate sheet

A. Defendant Republic of Korea performed the registration procedure for cancellation of the registration of the establishment of chonsegwon completed by the Seoul Southern District Court Gangnam District Court 19O.O.O.O.O.O.O.O.O. to the Plaintiff;

B. Defendant YellowB and YellowCC expressed their intention to accept the cancellation of the registration of the right to lease on a deposit basis as described in the above paragraph (a).

2. The costs of lawsuit shall be borne by each person;

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The real estate listed in the separate sheet (from the following to the instant real estate) is a building for which KimD completed the registration of ownership preservation on May 19, 1989. The Plaintiff acquired by public sale on November 19, 2015 and completed the registration of ownership transfer on December 21, 2015.

B. On August 14, 1995, E made a registration of the establishment of chonsegwon (hereinafter referred to as the "registration of chonsegwon in this case") with the term "40 million won on the ground of the contract as of April 10, 1995, the entire area of 18.87m2 (hereinafter referred to as "103m2") on the southwest of the west-west residential building, and the term of 19.87m2 (hereinafter referred to as "103m2") on the ground of the contract as of April 10, 1995.The KimF obtained a provisional attachment order as of the instant chonsegwon in Seoul Southern District Court 200OOOOOOO on September 13, 201, and completed the provisional attachment registration of chonsegwon on the 14th of the same month.

C. On August 14, 1995, this GG completed the registration of the establishment of chonsegwon with the term “70 million won for the instant real estate on the ground of a contract dated April 25, 1995,” the entire area of the residential building 1st floor (201), the term of 37.74 square meters on the Dong, and up to April 25, 1996. This GG recognized that the registration of the establishment of chonsegwon was false registration completed in accordance with the proposal of KimD to avoid compulsory execution.

D. On November 8, 2012, JH received the order of lease registration with the Seoul Southern District Court 200OOOO of KRW 18 million on the lease deposit date, May 31, 1995 on the lease agreement date, June 14, 1995 on the resident registration date, June 6, 1995 on the date of commencement of possession: June 6, 1995, and June 14, 1995 on the order of lease registration with the fixed date date fixed.

E. Around April 7, 2008, EE died. A spouse most II of E has died on February 5, 1999, and EE’s family relation certificate issued as of March 2, 2016 is written only the names of parents (JJ, E-C) and there is no family member described other than this.

F. The KimF died on February 7, 2003, and Defendant Yellow Co., Ltd, her husband, is his heir.

[Ground of recognition] Unsatisfy, Gap evidence 1 to Gap evidence 4, whole purport of pleading

2. Judgment on the main defense of this case

A. Defendant Republic of Korea’s assertion

Since inherited property belongs to the State only through the procedures under Articles 1053, 1056, and 1057-2 of the Civil Act according to the inheritor's existence system, the Plaintiff cannot make a claim for cancellation of the right to lease on a deposit basis against the Defendant Republic of Korea immediately without going through such procedures. Thus, the lawsuit against the Defendant Republic of Korea should be dismissed.

B. Relevant provisions and precedents of the Civil Act

[Article 1053(1): If the existence of an inheritor is not ascertained, the court shall appoint an administrator of inherited property upon the request of a relative of the inheritee pursuant to the provisions of Article 777, any interested person, or a prosecutor, and give public notice thereof without delay.

·Article 1056(1): If the existence of an inheritor is not known within three months from the date of the public notice given in Article 1053(1), the receiver shall, without delay, give public notice to the general obligees in inheritance and testamentary donees, calling upon them to report their claims or testamentary gifts within a given period of not less than two months. The period shall be at least two months.

§ 1057: When the existence of an inheritor is unknown even after the lapse of the period mentioned in Article 1056(1), the court shall, at the request of the custodian, give public notice to the heir to claim his/her rights within a given period. The period shall not be less than one year.

Article 1057-2(1): When no person asserts his/her right to inheritance within the period of Article 1057, the Family Court may allocate all or part of the inherited property upon the request of a person who was living together with the inheritee, a person who provided the inheritee with medical and nursing care, or a person who has special relationship with the inheritee.

Article 1058(1): If no distribution is made in accordance with Article 1057(2), the inherited property shall belong to the State.

The Supreme Court Decision 98Da59132 delivered on February 23, 1999: The land in the name of a specific person shall be presumed to be owned by the person in charge of the situation or his/her heir, barring any special circumstances; even if the landowner is missing and it is impossible to determine whether he/she is alive or not, unless it proves that he/she is dead and his/her heir is nonexistent or the procedures for reverting the land to the State pursuant to Articles 1053 through 1058 of the Civil Act are not immediately owned by the State.

Supreme Court Decision 2005Da55879 Decided June 28, 2007: The defendant is an administrator of inherited property appointed by a legitimate court in a lawsuit concerning inherited property for which the existence of an heir is unclear.

C. Determination

In light of the above provisions and precedents, the procedure of devolving inherited property pursuant to Articles 1053 through 1058 of the Civil Act is a procedure that should be followed in cases where the existence of an heir is unclear, and if it is recognized that there is no heir, it shall be reverted to the State without such reversion procedure.

According to the facts established above, since E has died without the heir (No. 3-1 of the evidence No. 3-1 of the above), the plaintiff can seek cancellation of the registration of lease on a deposit basis against the defendant Republic of Korea in this case where it is proved that E had no child between EE and the largest II, and that E had no heir to E, the plaintiff can seek cancellation of the registration of lease on a deposit basis.

Therefore, the main defense of Defendant Republic of Korea is without merit.

3. Judgment on the merits

A. Determination on the claim against Defendant Republic of Korea

In light of the fact that the registration of the establishment of the right to lease on a deposit basis of GG as of the same day as the registration of the right to lease on a deposit basis is false registration; E registered the right to lease on a deposit basis of the contract as of April 10, 1995; E entered into a lease contract as to 103 on May 31, 1995 and possessed from June 6, 1995; E received the right to lease on a deposit basis; and E did not take any measures to recover the right to lease on a deposit basis after the registration of the right to lease on a deposit basis of this case, the registration of this case appears to be false registration of the right to lease on a deposit basis. Even if this does not so, E may exercise its right to lease on a deposit basis from June 6, 1995 to exercise its right to lease on a deposit basis, and thus, E did not exercise its right to return the right to lease on a deposit basis for more than ten years thereafter.

Therefore, Defendant Republic of Korea is obligated to cancel the registration of chonsegwon of this case to the Plaintiff.

B. Determination as to the claim against Defendant YellowB and YellowCC

If a person having chonsegwon bears the obligation to cancel the registration of chonsegwon with respect to the settlor of chonsegwon, the person having chonsegwon who has attached it provisionally and completed an additional registration has the obligation under the substantive law to give consent necessary for the procedure for cancellation registration of the settlor of chonsegwon as a third party to the registration (see, e.g., Supreme Court Decision 97Da33997, Feb. 5, 199).

Defendant 1, the heir of KimF who seized the instant chonsegwon, is the third party interested in the registration of the right to lease on a deposit basis, and it does not dispute that the cancellation of the instant right to lease on a deposit basis has the obligation to accept the cancellation of the right to lease on a deposit basis. Therefore, Defendant YellowB and YellowCC has the duty to express its consent to the cancellation of the instant right to lease on a deposit basis.

4. Conclusion

If so, the plaintiff's claim against the defendants is justified.