Seoul Central District Court-2013-Ga-179570 ( October 11, 2014)

If it is recognized that the person under circumstances has disposed of the land to another person after the assessment is conducted, the person under circumstances or the heir may not request the cancellation of registration of preservation of ownership.

Since the State entered into a sales contract with his guardian who represented by the current state on the previous land and paid the purchase price and presumed that the State acquired the ownership of the previous land, not only the State has lawfully acquired the ownership of the previous land but also the heir of the current state has lost the ownership.

Article 214 of the Civil Code, Claim for Removal and Prevention of Disturbance against Article 214

2014Na12125 Registration for cancellation of ownership

IsaA

Republic of Korea and one other

Seoul Central District Court Decision 2013Da179570 Decided February 11, 2014

August 17, 2016

August 31, 2016

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

the Gu Office's place of service and place of service

The judgment of the first instance court is revoked. The plaintiff is revoked with respect to the share of 11/52 in relation to the OO-dong 719-12 large scale 115.4 square meters, the defendant Republic of Korea will implement the procedure for cancellation registration of ownership transfer (hereinafter referred to as the "transfer registration of this case") completed by the Seoul Western District Court OOO registry of the Seoul Western District Court on January 13, 1975 (hereinafter referred to as "the preservation registration of this case"), and the defendant BB completed by the receipt of No. 22748 of the same registry office on May 13, 1997.

1. Basic facts

가. 토지조사부에는 경기도 OO군 OO면 OO리 333 전 585평(이하 '종전 토지'라 한다)을 1913(대정 2년). 1. 20. 이CC(李CC)이 사정받은 것으로 되어 있다.

B. The previous land was partitioned on January 17, 1961 into 333-1, 344 square meters prior to 333-2, and 241 square meters prior to 333-2, the same Ri. The 241 square meters prior to 333-2, prior to 333-11, prior to 164 square meters prior to 333-11, prior to 333-16, prior to 164, prior to 333-16, prior to 164, prior to 333-19, prior to 142, prior to 142, prior to 333-142, prior to 1970, prior to 333-27, prior to 37, prior to 1963-4, prior to 197, prior to 193-36, prior to 27, prior to 197.

C. In the old land cadastre (the actual land cadastre is divided from the previous land) the ownership of the previous land was transferred to the State on September 1, 1944 (Fire 19 years).

D. On January 13, 1975, Defendant Republic of Korea completed the preservation registration of the instant land before replotting, and thereafter, the registration of the instant transfer was completed under Defendant OB’s name on May 13, 1997 after the completion of each ownership transfer registration in the name of KimD and EE with respect to the land before replotting.

마. 종전 토지의 사정명의인인 이CC(李CC)은 1942. 3. 19. 사망하여 이CC의 장남인 이FF(李FF)이 망 이CC의 재산을 단독상속하였다. 이FF에 대하여 1943. 7. 9. 실종선고가 확정되어 이FF의 장남인 이GG(李GG)이 이FF의 재산을 단독상속하였다. 이GG은 2003. 12. 14. 사망하여 처 김HH과 자녀들인 원고, 이II, 이JJ, 이KK, 이LL이 망 이GG의 재산을 공동상속하였다. 김HH은 2010. 10. 18. 사망하여 그 자녀들인 원고, 이II, 이JJ, 이KK이 김HH의 재산을 공동상속하였다. [인정 근거] 다툼 없는 사실, 갑 제1 내지 6호증, 을나 제1 내지 5호증(각 가지번호 포함, 이하 같다)의 각 기재, 변론 전체의 취지

2. The parties' assertion

A. The plaintiff

Inasmuch as this case’s land was partitioned from the previous land, thisCC, the Plaintiff’s prior owner, acquired the ownership of the previous land, and as such, the registration of preservation of this case’s land and the registration of transfer of this case’s land under Defendant OB, the name of Defendant Republic of Korea, based on which it was based, should be cancelled by the registration of invalidity of cause.

B. Defendant Republic of Korea

ThisM, appointed as a guardian of thisG, sold the previous land on behalf of thisG to the Defendant Republic of Korea, and the Defendant Republic of Korea paid the sale price and acquired the ownership of the previous land. Accordingly, the preservation registration in the name of the Defendant Republic of Korea on the instant land divided and substituted by the previous land is valid registration in accordance with the substantive relationship.

(c) Defendant OB;

Defendant OB purchased the land before replotting from EE, the former owner on April 6, 1997, and completed the instant transfer registration on May 13, 1997. Even if that is not so, Defendant AB acquired the instant land by prescription by occupying the land before replotting or the instant land in good faith for at least 10 years after acquiring the land before replotting and completing the instant transfer registration, with the intention to own the land in good faith. Accordingly, the instant transfer registration under Defendant OB’s name is valid registration in accordance with the substantive relationship.

3. Determination

A. Relevant legal principles

A person registered in the Land Survey Book as an owner shall be presumed to have become final and conclusive, unless there is any counter-proof, such as the change in the content of the situation by the adjudication, and the land is presumed to have become final and conclusive. The presumption of preservation of ownership shall be broken if a person other than the title holder of the preservation registration was found to have received the situation of the relevant land. However, in order to seek cancellation of the registration of preservation of ownership in the name of another person, which was completed with respect to real estate as part of the exercise of the claim for exclusion from infringement of real rights based on ownership based on real rights, he/she must first assert and prove that he/she has the title to request cancellation. If it is not recognized that there is such title, even if the registration of preservation of ownership in the name of another person should be cancelled, a claim may not be accepted even if the title holder or his/her heir disposes of the land to another person. Thus, if it is recognized that there is no right to request cancellation of registration against the title holder of the land after the circumstance, and thus, it cannot be acknowledged that there is no other entry in the previous farmland distribution document or distribution of right within 97.

B. Whether Defendant Republic of Korea acquired the instant land

종전 토지에 대한 구 토지대장에는 이CC이 종전 토지를 사정받았다가 1944(소화19년). 9. 1. 국(國)으로 그 소유권을 이전된 것으로 기재되어 있는 사실은 앞서 본 바와 같고, 갑 제2, 17호증, 을가 제1호증의 각 기재, 한국철도공사사장에 대한 사실조회 및 문서송부촉탁결과, 변론 전체의 취지에 의하면, ① 이GG의 제적등본에는 이CC의 재산을 단독상속받은 이FF(李FF)의 실종선고가 확정된 후 1943. 12. 30. 이GG의 숙부인 이MM(李恒振)이 당시 미성년자였던 이GG(1927. 5. 14.생)의 법정후견인으로 취임하여 1944. 4. 7. 취임신고를 한 것으로 기재되어 있는 사실, ② 토지매수하조서에는 '국(國)이 1944(소화 19년). 8. 5. 이CC(李CC)의 상속인인 부평GG(富平GG, 이GG은 부평이씨인바 부평GG은 이GG의 창씨개명한 이름으로 보인다)의 후견인 부평MM(富平MM, 마찬가지로 이MM의 창씨개명한 이름으로 보인다)으로부터 종전 토지를 매수하여 1944(소화 19년). 9. 일자불상에 국유지성(國有地成) 통지를 하고, 1944. 10. 7. 매매대금을 지급한 것으로 기재되어 있는 사실, ③ 한국철도공사가 보유하고 있는 '수색 제2기관고' 토지권리증서에는 종전 토지의 소유자가 이CC(李CC)으로 기재되어 있으나 매수하였고, 그 대금을 지급한 것으로 기재되어 있는 사실을 각 인정할 수 있다.

According to the above facts, the ownership of the previous land was transferred to the State on September 1, 194, after the death of thisCC on the previous land land cadastre, and although the entry of the previous land cadastre was written differently from the method of entry according to the state-owned land at the time of the Japanese occupation, in light of the land purchase report and the certificate of land rights, etc., it is presumed that the State entered into a sales contract with the guardian of thisG who represented thisGG on the previous land at the Japanese occupation point and paid the purchase price and paid the purchase price, and then the State acquired the ownership of the previous land in accordance with the principle of intention as to the ownership of the previous real estate at the time of the Japanese occupation.

C. As to the assertion that a lower-price of purchase and a certificate of land rights cannot be admitted as evidence

The plaintiff asserts that a land purchase report on the previous land is merely prepared in the process of purchasing the land, not prepared in the Japanese colonial era, but prepared and used for simple business convenience after the tidal wave. There are no way to write it in principle, the content of which is not reliable, and the land rights certificate was prepared after the piracy, and the authenticity is not presumed to have been established because there are many false entries, and even if the authenticity is recognized, it cannot be considered as evidence because there is no credibility.

In light of the form, purport, and contents of the previous land purchase report (A evidence No. 1) is prepared from 1944, it seems that the public officials belonging to the defendant's Republic of Korea and the public officials belonging to the defendant's Republic of Korea continued to prepare and delete the previous land after 1945, and the previous land rights certificate is presumed to have been duly prepared by the public officials belonging to the Korea National Railroad to manage state property after 1945.

According to the evidence submitted by the Plaintiff, part of the land recorded in the land purchase report or the land rights certificate is found to have been registered differently from its contents. However, in light of the following: (i) the land purchase report and the land rights certificate for the previous land coincide with each other; (ii) the last day has passed since the sunset; (iii) the land purchase report and the land rights certificate are deemed to have been lost due to the Korean War, etc.; and (iv) the land purchase report and the land rights certificate are deemed to have been prepared from the Japanese colonial point; and (v) the public officials belonging to the Korea Railroad after the sunset confirm the relevant documents, etc. and state the relevant column at the time when the land purchase report and the land rights certificate are deemed to have been recorded, it cannot be readily concluded that only the entry in the land purchase report and the land rights certificate for the previous land and the land rights are false merely based on the appraisal results of KimN and the appraisal results of the current appraiser Kim N.

(d)registration consistent with substantive relations.

According to the above facts, since the state lawfully acquired ownership of the previous land, the registration of this case in the name of the defendant Republic of Korea is not accurately reflected in the process of purchase. However, the registration of this case in the name of the defendant Republic of Korea is valid in accordance with the substantive relationship as it indicates the ownership of the defendant Republic of Korea over the land divided from the previous land. As long as the registration of this case in the name of the defendant Republic of Korea conforms to the substantive relationship, as long as the registration of this case in the name of the defendant Republic of Korea is valid in accordance with the substantive relationship, it is presumed that the registration of this case in the name of defendant OB, which was completed through the former owner from the defendant Republic of Korea as well as

E. Sub-committee

Therefore, the preservation registration of this case and the transfer registration of this case are valid only in accordance with the substantive relations, but also the plaintiff's prior owner of this case lose ownership of previous land, and the plaintiff is no longer the heir of previous land. Therefore, the plaintiff's claim of this case is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so dismissed in its entirety, and it is so decided as per Disposition.