Plaintiff (Law Firm Busan, Attorneys Seo Young-young et al., Counsel for the plaintiff-appellant)

Korea

November 6, 2008

Suwon District Court Decision 2007Kadan5680 Decided August 22, 2007

1. Revocation of a judgment of the first instance;

2. It shall be confirmed that the farmland of 2,284 square meters prior to the 190-2,284 square meters is owned by the plaintiff in the Seoul Special Metropolitan City of Pakistan.

3. All costs of the lawsuit shall be borne by the defendant.

It is as set out in paragraphs 1 and 2 of this Decree.

1. Basic facts

A. The gold-ri 190,000,000 Geumju-gun, Jeonju-gun, and 691,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

B. The former land cadastre column for the land of this case states that “the transfer of ownership on December 1964 by law No. 1657” to the non-party 3 who has an address in Geumegro 45-1 following the non-party 1, and the above land became a cadastral restoration due to the owner’s unclaimed restoration on August 7, 2006, and remains in a state of unregistered registration.

C. On April 14, 2002, the deceased non-party 3, who was the plaintiff's father, succeeded jointly to the land of this case among the plaintiff, non-party 4, 5, 6, 7, and 8. On January 2007, the agreement on division of inherited property was reached by the plaintiff's sole inheritance of the land of this case between the above inheritors.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap's 1 through 6, the purport of whole pleadings

2. The plaintiff's assertion

The plaintiff purchased the land of this case from the non-party 1, the title holder of the land of this case, and followed the procedure under the former Act on Special Measures for the Registration, etc. of Ownership of common Farmland (Act No. 1657) in the name of the deceased non-party 3, the deceased non-party 2, the deceased non-party 2, the title holder of the land of this case, and asserted that the non-party 3 acquired the ownership of the land of this case, and that the plaintiff succeeded to

3. Determination

A. We examine whether ○○○ and Nonparty 3 referred by the Plaintiff are the same person as indicated in the former land cadastre column.

According to Gap evidence Nos. 2 through 5, 7, and 9 (including virtual number) evidence, ○○○ and the plaintiff's non-party 3 mentioned in the old land cadastre column for the land of this case are identical to the Chinese name, and ○○○'s address on the old land cadastre for the land of this case is "45-1". The old land cadastre for the land of this case is stated as "45-1", and the old land cadastre for the land of this case is stated as transfer of ownership from non-party 2 to ○○○○○ who has an address in "5-1, Seongbuk-gu, Seoul. 5-1, and the above 45-1 land register of the old land of this case is changed to "○○○○ on January 7, 1976, the address of the plaintiff's non-party 3, the plaintiff's resident registration address of this case, and the changed to "○○○○-3, 391-331, 1968."

B. We examine whether Nonparty 2, the father of the Plaintiff, purchased the instant land and Nonparty 3 acquired the ownership of the instant land after Nonparty 2 purchased it.

The following facts may be acknowledged in full view of the evidence Nos. 7-1, 2, and 8-1 through 3, 10, Eul evidence Nos. 1, 2-1, 2-5, and non-party 4, 9, 10, and 11's testimony and the whole purport of the pleadings.

1) Around 1937, Nonparty 2, the Plaintiff’s father, purchased the land in this case and the land in this case and the land in this Ri No. 45-1 and 188 of the Silju-si court of Pakistan-si in order to be used as one’s own cemetery Nonparty 12, who is one’s own fleet. As acknowledged in the following sub-paragraph (3), the registration of preservation of ownership was completed in the name of Nonparty 3 as to the land in this case, but the registration was not completed only when the land in this case was transferred to Nonparty 3.

2) From around 1957, Nonparty 3 and the Plaintiff had Nonparty 13 and Nonparty 14, the grandchildren of Nonparty 1 and their children, manage and cultivate the instant land. On the other hand, Nonparty 9, the wife of Nonparty 14, entrusted Nonparty 12, who is the Plaintiff’s fleet, with the Plaintiff’s fleet’s fleet’s mallebry 45-1 land, etc., and now, Nonparty 9, the wife of Nonparty 14, cultivated the vegetable, etc. from the instant land.

3) The owner column of the old forest register concerning the above Geumsan 45-1 land stated that the ownership has been transferred from Nonparty 2 to Nonparty 3. The above land had been registered for preservation of ownership by Nonparty 3 pursuant to Act No. 2111 (former Forest Land Ownership Registration Act, etc.) on February 9, 1971. The owner column of the old forest register concerning the land 188 in this Ri entered Nonparty 3 as the owner, and on September 19, 1965, the registration of preservation of ownership has been completed in the name of Nonparty 3 on the above land.

4) Around 2006, Nonparty 14 decided to purchase the instant land from the Plaintiff at KRW 120 million. However, upon Nonparty 14’s request, Nonparty 14 shall be subject to the Act on Special Measures for the Registration, etc. of Real Estate Ownership, etc., and for this purpose, Nonparty 3 received a written confirmation of sale stating that “the instant land was sold to Nonparty 14 on April 10, 1970.” The said confirmation was the wind that one of the guarantors raised an objection on the ground that the said confirmation was different from the fact, and Nonparty 14 voluntarily withdrawn the application for the issuance of a confirmation under the Act on Special Measures for the Registration, etc. of Real Estate Ownership, which was received at the SP on August 22, 2006.

Each of the above facts revealed that the ownership was transferred from Nonparty 1 to Nonparty 3 pursuant to Act No. 1657 of Dec. 12, 1964 (Special Measures for the Registration of Transfer of Ownership of the former General Farmland), and that Nonparty 3’s co-inheritors independently inherited the instant land and agreed on the division of inherited property, etc., Nonparty 2, the Plaintiff’s co-inheritors, a co-inheritors, purchased the instant land from Nonparty 1, the title holder of the instant land, and transferred the instant land to Nonparty 3, the Plaintiff’s co-inheritors, the ownership of which was owned, around 1937, after purchasing the instant land from Nonparty 1, the title holder of the instant land, and the Plaintiff acquired the ownership by solely succeeding the ownership.

C. Meanwhile, even if the Plaintiff’s prior purchase of the instant land did not complete the registration under the Act on Special Measures for the Registration of Transfer of Ownership of General Farmland, the Defendant asserted that the said assertion alone cannot seek confirmation of ownership against the State. However, as seen earlier, the instant land remains unregistered without restoring the current landowner’s column. Although the name of Nonparty 3, the father of the Plaintiff, was stated in the previous land cadastre’s column, it is not possible to apply for registration of transfer of ownership solely because it did not have any capacity to estimate rights, and it seems impossible to seek registration of transfer of ownership against the Plaintiff by finding all Nonparty 1’s descendants, who is the real name of the Plaintiff. In full view of the fact that the Plaintiff’s claim for registration of transfer of ownership is in dispute over the Plaintiff’s ownership of the instant land, the Plaintiff’s non-registered land, and thus, there is no other remedy for infringement of rights against the State, and thus, the Plaintiff has interest in seeking confirmation of ownership against the State.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance which has different conclusions is unfair, and it is so revoked and it is so decided as per Disposition.

Judges Cho Jae-sik (Presiding Judge)