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대법원 2007. 10. 25. 선고 2007다46138 판결
[소유권보존등기말소][미간행]
Main Issues

Where a person other than the holder of a title deed has proved to have received assessment of the land, the legal principles that reverse the presumption of such preservation registration.

[Reference Provisions]

Article 186 of the Civil Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Dong-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff-Appellee

Plaintiff

Defendant-Appellant

Korea

Judgment of the lower court

Suwon District Court Decision 2006Na15875 Decided June 14, 2007

Text

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

Reasons

We examine the grounds of appeal.

1. In full view of the evidence duly admitted, the court below acknowledged that the land survey book prepared on June 20, 1912, which was the land before the division of Gyeonggi-gun 49-1 (hereinafter “instant land”) was entered as the condition of the above land in the land survey book prepared on June 20, 1912, which was the land before the division of Gyeonggi-gun 49-1 (hereinafter “instant land”), and that the registration of preservation of ownership was completed on March 5, 1932 by using a certified copy of the old land cadastre as a document for the cause of registration, and thereafter, the old land register was destroyed due to the 6.25 incident, etc., and that the Defendant completed registration of preservation of ownership of the land in this case on February 26, 1996, the court below determined that it was reasonable to view that the above land was transferred to the public official’s land to be the land cadastre of the previous land and its registration of preservation of ownership was not the same as the previous land cadastre of the previous land register (No. 14.25).

2. However, we cannot accept the above judgment of the court below.

The presumption of registration of preservation of ownership of a parcel of land is null and void unless there is a separate person to whom the land is assessed, and the registered titleholder does not assert or prove the fact of acquisition by succession (see, e.g., Supreme Court Decision 2002Da43417, May 26, 2005). In addition, since the new registration form is established by establishing a new registration form, and the changes in rights thereafter becomes the starting point of the preservation registration, the registration shall be consistent with the legal relationship under the substantive law. Therefore, the registration cannot be made based only on the relative circumstances between the parties, such as other ordinary registrations, and the existence of a real right is necessary. Therefore, the registration of preservation of ownership shall not be presumed to be true only with respect to the fact that the ownership is preserved in a true manner, and there is no presumption of changes in rights other than that of the registered titleholder. In light of the essence of the registration of preservation, if it is proved that the registered titleholder is not the original acquisitor, the registration of preservation of ownership shall be presumed to be consistent with 1666.

As seen above, inasmuch as the title holder of the ownership registration of the land of this case is a new house, but it has been proved that the title holder of the land of this case is the defendant, who is the state, and is not the original acquisitor, the presumption of ownership registration under the title holder of this house has broken. Therefore, in order for the above ownership registration to be a valid registration consistent with the substantive relationship, it should be specifically asserted and proved that the title holder acquired the land of this case from the defendant. In other words, according to Article 2 of the former Land Conservation Rule (No. 45 of the Ministry of Land Planning and Ordinance of the Republic of Korea of April 25, 1914), in principle, it is possible to register the ownership transfer on the land cadastre without a public official's notice, but the exception is recognized if the ownership of the land of this case is transferred due to the non-permanent, exchange, transfer, or unregistered expropriation of the land of this case, and the fact that the ownership registration of this case was completed by the exchange of the land of this case with the ground for registration of the land of this case, it is insufficient to acknowledge the acquisition from the original land of this case.

Nevertheless, the court below held that the registration of preservation of ownership of the land of this case in the name of Lee Jong-dae was valid by recognizing that Lee Jong-dae succeeded to the land of this case from the defendant merely for the above reasons shall be deemed to have committed an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations by misapprehending the legal principles as to the presumption of registration, or by exceeding the rule of experience. The grounds for appeal pointing this out are with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)