[1] Requirements for the cancellation of transfer registration made under the former Act on Special Measures for the Registration, etc. of Ownership Transfer, and whether the transfer registration can be completed under the same Act even if the transfer is made through a third party other than the nominal owner (affirmative)

[2] The case reversing the judgment below which reversed the presumption of the ownership transfer registration under the name of clan A on the ground that it cannot be viewed as a case where the registration cannot be completed under the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, where the clan A asserted that he acquired forest land from a person other than the title holder and completed the registration of ownership transfer pursuant to the former Act

[1] Article 186 of the Civil Code / [2] Article 186 of the Civil Code

[1] Supreme Court Decision 9Da15818 delivered on June 25, 1999, Supreme Court Decision 2008Da3992 Delivered on May 29, 2008

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

Analym Jin Chang-Jinng et al. (Attorney Yang Chang-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 2010Na12157 Decided October 6, 2010

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

The grounds of appeal are examined.

The registration completed under the Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (Act No. 4502, Nov. 30, 1992; hereinafter "Special Measures Act") shall be presumed to be complied with by the registration in conformity with the substantive legal relationship because it has been completed in accordance with the lawful procedures prescribed by the Act. Thus, a person who intends to request the cancellation of the ownership transfer registration completed under the Special Measures Act shall assert and prove that the registration is not duly made due to any false or forged letter of guarantee or confirmation, or any other reason; further, a false letter of guarantee or confirmation means that the substantial contents of the entry in the reason for the alteration of a right are inconsistent with the truth; and a registration of ownership transfer under the above Act shall be allowed not only in cases where a person who owns the ownership directly takes over the ownership from the third party, but also in cases where a person acquires the ownership transfer registration through a third party (see Supreme Court Decisions 9Da15818, Jun. 25, 199; 208Da3929, May 29, 2008, etc.).

According to the reasoning of the judgment below, the court below found the following facts based on the adopted evidence as follows: (a) the head of the Daejeon District Court, the head of the Daejeon District Court registry office, No. 637 of July 24, 1970, and the registration of preservation of ownership was made for the sharing of the Plaintiff and Nonparty 1; (b) the defendant clan, in accordance with the Act on Special Measures, completed the registration of ownership transfer for the sale of the forest land of this case as of April 28, 1995, No. 8742 of the same registry office, which was due to the sale on August 1, 1977; and (c) Article 10(1) of the Act on Special Measures, determined that the plaintiff's assertion that "the actual transferee of the unregistered real estate, the title holder of the real estate, and the de facto owner of the real estate restored, who had already been registered, shall be issued a confirmation document from the registry office to apply for the registration under this Act, and that the plaintiff had already completed the registration of ownership transfer of the forest land of this case against Defendant 1, the defendant 298.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and the following circumstances.

According to the records, the defendants asserted that "The forest of this case was purchased from the State around 1932, but the plaintiff and the non-party 1 were registered to preserve ownership without permission around 1970, and the defendant 2 and the non-party 3, who are the successors of the above non-party 2 and the non-party 3, knew of this fact around 1985 and agreed to the plaintiff and the non-party 1, the plaintiff and the non-party 1 agreed to the defendant 2 and the non-party 3 to acquire the forest of this case, and the defendant 2 and the non-party 3 promised to deliver the forest of this case to the defendant clan under the conditions as stated in the judgment of the court below."

Thus, the defendants' assertion is clear that "the plaintiff who is a registered titleholder and the defendant 2 and 3 should receive ownership transfer from the plaintiff who is the registered titleholder, and the defendant clan was donated from the defendant 2 and 3." Thus, even if the defendant clan asserted that he was acquired through a third party, it cannot be viewed that the registration under the Act on Special Measures for the Prevention of Disasters cannot be completed solely on the ground of such circumstance.

Nevertheless, the court below judged that the presumption of transfer of ownership in the name of the defendant clan was reversed on the ground that it is obvious that the registration cannot be completed pursuant to the Act on Special Measures, in case where it claims that the already-registered real estate was acquired by a person other than the title holder. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the application of the Act on Special Measures and the presumption of transfer

Therefore, 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 Shin Young-chul (Presiding Justice)