Seoul Central District Court-2015-Ga group-5264378 ( October 18, 2016)

Since registration based on double registration is null and void, it must be cancelled.

First, insofar as the registration of ownership preservation does not become null and void, the registration of ownership registration later registered shall be null and void under the current Registration of Real Estate Act adopting the first real estate registration law, and the registration of ownership transfer made in sequence based on the registration shall also be null and void, and thus, there is a duty to cancel the registration.

Article 186 of the Civil Act

2016Na70187 Registration for cancellation of ownership

AA

BB

Seoul Central District Court 2015Kadan5264378

June 22, 2017

July 13, 2017

1. Of the judgment of the first instance court, the part of the Plaintiff’s failure against Defendant A and the part against Defendant Aa, which constitutes the following order to implement:

2. The Plaintiff:

A. As to the real estate listed in the separate sheet 3, Defendant Aa carries out each procedure for the cancellation of ownership transfer registration as to the real estate listed in the separate sheet 3, Defendant Aa, which was completed on June 5, 1990 by the District Court of Gwangju, No. 18762, and the same registration received on September 19, 200, and each transfer of ownership completed on June 27, 200 by the receipt No. 32540, and each transfer of ownership completed on June 27, 200, and Defendant Aa, which was completed on March 31, 200 and completed on March 13826;

B. As to the real estate listed in the separate sheet No. 4, Defendant Aa implements the procedure for the cancellation of the registration of transfer of ownership as to the real estate listed in the separate sheet No. 7846, Mar. 14, 1990, and each transfer of ownership completed under No. 32540, Jun. 27, 2002;

C. As to the real estate listed in the separate sheet 5, Defendant Aa will implement each procedure for the cancellation of the registration of the transfer of ownership completed as of March 31, 200 and as of March 14, 1990, received as of March 14, 1990, received as of September 19, 200, received as of September 19, 44257, and completed as of June 27, 2002, and each transfer of ownership completed as of June 32540, and Defendant Aa will implement each procedure for the cancellation of the registration of the transfer of ownership completed as of March 31, 200 and as of March 13826.

3. Of the total costs of the lawsuit, 50% of the portion arising between the Plaintiff and the Defendant Aa is borne by the Plaintiff, the remainder is borne by Defendant Aa, and the portion arising between the Plaintiff and the Defendant Aa is borne by Defendant Aa.

As set out in the Disposition 1 and 2 (the plaintiff filed an appeal against Co-Defendant Aa, bb, cC Co-Defendant Aa, Aaaa, bbb, and the Defendants, but at the trial of the court, the appeal against each of the real property listed in the Schedule 1 and 2, was withdrawn at the trial, and the appeal against Aa, bbb and Defendant Cc in the judgment of the court of the first instance and the claim for each of the real property listed in the Schedule 1 and 1 and 2 against Defendant CC were separately finalized).

1. Basic facts

A. The Plaintiff is the owner who completed the registration of transfer of ownership from Defendant Aa with respect to the registration of 50-1 forest land and 4,661 square meters (hereinafter referred to as “instant real estate”) in Jeonan-gun-gun, Jeonan-gun-gun, Jeonan-gun-gun (hereinafter referred to as “the instant real estate”) and the registration of transfer based on sale on July 14, 200, as the receipt of No. 38223, Aug. 5, 2000.

B. On April 6, 1945, the instant real estate was divided into KRW 50 forest land for the supervision of the head of the Dong-gun, Nananan-gun, Nanannam-gun, and the registration of ownership preservation was completed on March 6, 1929 with respect to the forest land of KRW 50 forest land for the supervision of the head of the Dong-gun, Nanan-gun, Nanannam-gun.

C. Meanwhile, in the vicinity of the instant real estate, the forest and field supervision was located in the area of 51-1 forest and field supervision in the area of the former, the area of 51-1 forest and field supervision in the area of the former, the area of which was subject to registration conversion on April 12, 1945, and the area of 51-1 forest and field supervision in the area of 51-1 forest and field was subject to registration conversion on April 12, 1945 to 7,461 (hereinafter “land before division”). The land before division was divided into the area of 535-2, 535-4, and 535-5 land on February 28, 1953, and the area of land was subdivided into the area of 535-4 land again on December 1, 1958.

D. On November 28, 1951, the registration of initial ownership was completed with respect to each real estate listed in the separate sheet 3 through 5, and thereafter the ownership was transferred several times, and as to the real estate listed in the separate sheet 3, the registration was completed with respect to the title stated in the separate sheet 1, the name of the Gwangju District Court (No. 18762), the same registration was received on June 5, 1990, and the name of the Republic of Korea (No. 13826), the name of the Republic of Korea (No. 13826), the same registration was received on March 31, 200, and the ownership transfer registration was completed under the name of No. 44257 (a) on September 19, 200, under the name of No. 37846 on March 14, 1990, and the ownership transfer registration was completed under the name of No. 3784.45 on March 14, 1990.

E. After death of Aa, Defendant A inherited each real estate listed in [Attachment 3 to 5] [Attachment 3 to 5] owned by it solely by agreement division, and Defendant A completed the registration of transfer of ownership due to inheritance by agreement division as to each real estate listed in [Attachment 3 to 5] in [Attachment 3] List 3 to 5], and the registration of transfer due to inheritance by agreement division as of June 27, 2002.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 5 to 11 (including each number), and fact inquiry results of the first instance court and the new military service office in the first instance court, and the purport of the whole pleadings

2. Determination

A. Determination on the defense prior to the merits

As the Plaintiff’s registration of each real estate listed in the separate sheet 3 through 5 constitutes a duplicate registration of the registration of the instant real estate, the Defendants asserted that they are obligated to implement the procedure for cancellation of ownership transfer registration in their respective names. Defendant A, even if the Plaintiff’s assertion is accepted, the instant lawsuit is asserted to the effect that there is no benefit of lawsuit because of no practical benefit to the Plaintiff, unless registration of preservation of ownership on each real estate listed in the separate sheet 3 through 5 is cancelled

On the other hand, the plaintiff's seeking implementation of the procedure for cancellation registration of ownership transfer registration against the defendants on the ground of overlapping registration as above is a claim for removal of interference based on ownership. Whether the registration of each real estate listed in the separate sheet is duplicate registration or obstructs the ownership of the plaintiff's real estate in this case is a matter to be determined within the main part, and it cannot be deemed that there is no benefit of lawsuit solely on the ground that defendant A claims are asserted by the defendant A.

B. Judgment on the merits

(1) On the premise that the Plaintiff’s real estate in this case and each of the real estate listed in Schedule 3 through 5 in the separate sheet constitute double registration, the Defendants asserted that the real estate in this case and each of the real estate listed in Schedule 3 through 5 in the separate sheet do not constitute double registration due to the difference of the parcel number, land category, size, etc.

(2) Therefore, it is necessary to first examine whether the pertinent real estate and the annexed list 3 through 5 constitutes overlapping registration. The overlapping registration means the registration arising from the completion of the registration of initial ownership transfer or destruction of all the same land already registered or part of the same register. The identity of the land should be determined by comprehensively taking into account the parcel number, land category, area, cadastral records, etc. (see Article 1431 of the Regulations on Registration). However, the registration conversion means a registration transfer of the land registered in the forestry register and forestry map to the land land cadastre and cadastral map (see Article 2 subparag. 14 of the Cadastral Act). However, even if the land before and after registration conversion is clearly identical (see, e.g., Supreme Court Decision 2002Da51265, Jun. 27, 2003). In addition, if there is a new registration of initial ownership transfer of the same land, it is not deemed that there is a difference between the two parcels of land and the new parcel number already divided into 187, supra.

(3) In light of the above facts, according to the above evidence, the real estate in this case was classified as forest and field. The real estate in this case and the 51-1 real estate in the 51-1 area in the Newan-gun, the boundary of closed cadastral map was terminated. The above Supreme Court decision in the real estate in this case and the head supervision mountain is before the so-called procedural compromise with regard to the validity of overlapping registration. The decision on whether to obtain prescription based on double registration is possible was changed by the Supreme Court en banc Decision 96Da12511 Decided October 17, 1996, but it is valid to determine whether the registration itself constitutes double registration. The 51-1 real estate was owned on the above 3-day date. However, in the process of dividing the real estate in this case, the list of the previous real estate in the name of the real estate in this case or the list of the previous real estate in this case is also recorded in the 5-day list or the previous list of the real estate in this case as well as the previous list of the real estate in this case.

(4) Therefore, insofar as the registration of initial ownership of a A-registered real estate does not become null and void, the registration of initial ownership transfer in the name of the above-mentioned date in the separate sheet 3 through 5, is null and void under the current Registration of Real Estate Act adopting the single real estate form principle, and the registration of ownership transfer in the name of the Defendants, which was made in order based on the above-mentioned date, is also null and void (see, e.g., Supreme Court en banc Decision 99Da66915, Feb. 15, 2001). Accordingly, the Defendants are the sole heir with respect to each real estate listed in the separate sheet 3 through 5, who completed the registration of ownership transfer in their respective names, and Defendant leaplue, who is the sole heir with respect to each real estate listed in the separate sheet 3 through 5, who is a separate heir with respect to each real estate listed in the separate sheet 3 through 5, respectively.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted for all reasons. Among the judgment of the court of first instance, the part concerning the defendant's real estate other than the claim portion as to each real estate listed in the separate list 1 and 2 as to the defendant's Republic of Korea and the part concerning the defendant Aa shall be revoked, and it is so decided as per Disposition by ordering the defendants to implement the procedure for cancellation of the ownership transfer registration as to each real estate listed in the separate list 3