Seoul High Court 2013Na2003055 ( November 28, 2013)

The plaintiff cannot be entitled to claim cancellation of ownership transfer registration.

In order to cancel the registration of preservation of ownership in the name of another person after completing the registration of preservation of ownership in the name of another person, the person must first assert and prove that he/she has the title to request the cancellation thereof, and if it is not recognized that there is such title, the registration of preservation of ownership in the name of another person can not be accepted even if it is an invalidation registration to be cancelled

Article 186 of the Civil Act

Supreme Court Decision 2014Da200299

IsaA

Korea

The second instance decision

Seoul High Court 2013Na2003055

May 29, 2014

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

A person registered in the Land Survey Book as an owner shall be presumed to have become final and conclusive by taking into account the circumstances as the owner of the land, unless there is any counter-proof such as that the content of the situation has been changed by the adjudication, and thus, the presumption of ownership preservation shall be shouldered if a person other than the title holder of the preservation registration was found to have obtained the situation of the relevant land. However, in order to seek cancellation of the registration of ownership preservation in another person’s name, which was completed as part of the exercise of the right to demand a removal of interference with real rights based on the ownership of the real estate, the person must first assert and prove that he/she has the right to demand cancellation thereof. If it is not recognized that the title holder has such right, even if the registration of ownership preservation in another person’s name is invalid, such claim may not be accepted. Accordingly, if the fact that the title holder disposes of the relevant land to another person after the circumstance is recognized, the title holder of the situation or his/her heir has no right to request cancellation of the registration (see Supreme Court Decision 2007Da71797, Dec. 24, 2008).

In addition, even if the entries are written as the owner on the land cadastre of the former Cadastral Act (amended by Act No. 2801 of Dec. 31, 1975), such documents as geographical names and the farmland land cadastre as well as the documents related to the distribution of farmland including the geographical names, and the previous land cadastre restored by the former Cadastral Act (amended by Act No. 2801 of Dec. 31, 1975), such entry does not have any capacity to presume rights. However, there is no limitation to taking the contents of the above documents as the materials for fact-finding regarding the alteration of rights in full consideration of other circumstances (see Supreme Court Decision 2009Da54652 of Nov. 26, 2009). Meanwhile, the facts established in a civil case that has been established in a civil trial may be a flexible evidence, barring any special circumstance. However, it is legally permitted to acknowledge facts that are different from the facts established in the final and conclusive judgment, which goes beyond the limit of the principle of free evaluation of evidence, as long as it is reasonable at the time of fact-finding (see Supreme Court Decision 2.

According to the reasoning of the judgment below, the court below determined that the plaintiff's claim on the premise that the plaintiff, the heir of the deceasedB, was still without merit, under the premise that the plaintiff's right to request the cancellation of the registration of preservation of ownership on the land Nos. 1, 2, and 3 of this case, was still in existence at the time when the plaintiff completed the registration of preservation of ownership in the name of the defendant for the land Nos. 1, 2, and 3 of this case, which was divided from the above land, in light of various circumstances that can be seen by comprehensively considering the adopted evidence and comprehensively considering the facts acknowledged as stated in the judgment and comprehensively considering the facts acknowledged.

In light of the above legal principles and records, the fact-finding and determination by the court below are justifiable, and contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park In-bok (Presiding Justice)

Justices Lee In-CC

Note 2: Park Jae-A

Justices Kim Dong-A