[1] The scope of the real estate subject to the Act on Special Measures for the Registration, etc. of Transfer of Ownership of the former Real Estate among the real estate for which registration of ownership preservation

[2] Whether the presumption of registration is broken solely on the ground that the person who completed the registration pursuant to the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate has asserted different from that stated in a letter of guarantee or a written confirmation about the cause of acquisition (negative)

[1] Article 3 of the former Act on Special Measures for the Transfer, etc. of Ownership of Real Estate (Act No. 4502 of Nov. 30, 1992) / [2] Article 186 of the Civil Act

[1] Supreme Court Decision 94Da13190 Decided September 9, 1994 (Gong1994Ha, 2615) / [2] Supreme Court Decision 2005Da2189 Decided April 29, 2005 (Gong2005Sang, 828) Supreme Court Decision 2010Da78739 Decided January 27, 2011

Plaintiff (Law Firm branch, Attorneys Kim Jong-sik et al., Counsel for the plaintiff-appellant)

Mine Labor Co., Ltd. and two others (Law Firm Initial et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2012Na2834 Decided November 16, 2012

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

The Defendants’ grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined together with the Defendants’ grounds of appeal.

1. As to the grounds of appeal regarding the scope of application under Article 3 of the former Act on Special Measures for the Registration, etc. of Ownership Transfer (Act No. 4502 of Nov. 30, 1992, and invalidation; hereinafter “Special Measures Act”)

Article 3 of the Special Measures Act provides that "This Act shall apply to the real estate stipulated in Article 2, which is actually transferred due to juristic acts, such as sale, donation, exchange, etc., such as real estate and the real estate which has not been registered for the preservation of ownership". In light of the legislative purpose of the Special Measures Act and the legislative background of the above provision, it is reasonable to interpret that the real estate subject to the Special Measures Act among the real estate not registered for the preservation of ownership is limited to the real estate actually acquired or inherited before December 31, 1985 (see Supreme Court Decision 94Da13190 delivered on September 9, 194, etc.).

In light of the above legal provisions and legal principles, the court below is just in holding that the land Nos. 1 through 8 of this case, which had not been registered as the preservation of ownership, was acquired before December 31, 1985 in order to be subject to the Act on Special Measures, and there is no error in the misapprehension of legal principles as to the scope of application of Article 3 of the Act on Special Measures, as alleged in the

2. As to the ground of appeal on the presumption of registration under the Act on Special Measures

A. Registration completed under the Act on the Special Measures shall be presumed to be a registration corresponding to the substantive legal relationship, and registration for preservation of ownership or registration for transfer shall not be broken unless there is any proof that the letter of guarantee or confirmation under the Act on the Special Measures was false or forged, or that the registration was not duly registered due to other grounds. Even if a person who completed registration under the Act on the Special Measures claims that he/she acquired a right based on other grounds of acquisition even if the grounds for acquisition stated in the letter of guarantee or confirmation are different from the facts, it shall not be deemed to have been clear that the registration under the Act on the Special Measures cannot be completed under the Act on the Special Measures, unless there are special circumstances, such as where there is a clear fact that it is impossible for him/her to complete the registration under the Act on the Special Measures, or where it is evident that the assertion is an instrument, it shall not be deemed that the presumption ability of registration completed under the Act on the Special Measures on the basis of the above reasons alone is broken (see Supreme Court Decision 2005Da17819, Apr. 29, 2005). 207

B. According to the reasoning of the judgment below, the court below acknowledged the fact that Eul was not included in the property list attached to the articles of association established at the ordinary meeting held on November 30, 1984 by the statement set forth in subparagraph 3-1 of the evidence No. 3 (hereinafter referred to as the "defendant's clan"), and determined that the presumption of the registration of ownership preservation in the name of the defendant's clan, which was completed in accordance with the Act on Special Measures, was broken down unless there is any proof of the acquisition cause at the time of application of the Act on Special Measures, since it is difficult to see that the defendant's clan made a resolution to terminate the title trust with the non-party at the above ordinary meeting, and otherwise, it is difficult to see that the defendant's clan made a decision to cancel the title trust with the non-party at the above ordinary meeting.

C. However, this decision of the court below is not acceptable for the following reasons.

(1) First, according to the statement No. 3-1 by Eul, which was based on recognizing the fact that the land No. 1 through No. 8 was not included in the property list as indicated in the judgment of the court below, it can be seen that the above property list contains the land No. 6, 7, and 8 as the property of the defendant clan.

Nevertheless, the court below acknowledged the fact that each of the above lands is not included in the defendant clan's property list based on the above evidence, and judged that it was difficult to view that there was a resolution to terminate the title trust of the defendant clan for each of the above lands. In so doing, the court below erred by misapprehending the bounds of the principle of free evaluation of evidence and by erroneously recognizing the fact that the judgment on the evidence goes beyond

(2) In addition, according to the records, the Defendants recognized the grounds for acquisition indicated in the guarantee certificate which served as the basis for registration of ownership preservation in the name of the Defendant clan and asserted that they acquired rights to each of the instant lands by termination of title trust. According to the aforementioned legal principles, in such a case, the presumption of registration of ownership preservation should be broken to the extent that it is suspected that the facts alleged by the Defendants are not true.

Nevertheless, the lower court did not examine whether the facts alleged by the Defendants were proven to be true or not, but rather determined that the Defendants breached the presumption of registration preservation on the ground that the Defendants did not prove a new acquisition cause. In so doing, the lower court erred by misapprehending the legal doctrine on the presumption of registration under the Act on Special Measures, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

(3) The grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)