[1] Requirements for registering the land which is not registered in the cadastral record in the cadastral record and making a preservation of ownership based on the registration (=the possibility of specifying the land)

[2] Whether the court shall investigate ex officio whether the land subject to the lawsuit seeking confirmation of land ownership is specified (affirmative)

[3] The case holding that, in a case where the cadastral record was entirely destroyed and the cadastral record was completely restored, but thereafter, whether registration of preservation of ownership is possible for the land closed on the ground that it is located on the north of the Military Demarcation Line, it is difficult to first specify whether the above land is located on the north of the Military Demarcation Line, and if the above land is located on the north of the Military Demarcation Line where it is impossible to confirm the current status, the registration of preservation of ownership is difficult to be made on the ground that the above land was specified on the ground that it was located on the north of the Military Demarcation Line, or that it is possible to

[1] In principle, land shall be specified by being registered with one parcel of land in the cadastral record, but land which is not registered in the cadastral record shall not be impossible to be registered in the cadastral record and to be registered as a preservation of ownership based thereon so long as it is possible to specify by means of appraisal, etc., but it is premised on the possibility that the land can be specified

[2] In a civil lawsuit, the object which is the rights or legal relations of the parties shall be specified. If the subject matter of the lawsuit is not specified, the court does not specify the subject matter of the lawsuit and the scope of the effect of the trial. Thus, whether the subject matter of the land ownership confirmation lawsuit is specified or not belongs to the court's ex officio examination as a litigation requirement.

[3] In a case where the cadastral record was entirely destroyed but the cadastral record was completely restored, but thereafter, whether registration of preservation of ownership is possible for the land closed on the ground that it is located on the north of the Military Demarcation Line, the case holding that if the above land is located in the north of the Military Demarcation Line and if it is impossible to confirm the current status, the cadastral records of the land, etc. recorded on the cadastral record closed on the ground that there is no way to confirm whether the parcel number, land category, boundary, or coordinates of the land in question coincide with all of the parcel number, land category, or area of the land in question, and on the premise that registration of preservation of ownership can be completed, it is difficult to specify the land in question, or that it is possible to

[1] Article 3 of the former Cadastral Act (repealed by Article 2 of the Addenda of the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774 of Jun. 9, 2009) (see Article 64 of the current Act on Land Survey, Waterway Survey and Cadastral Records) / [2] Article 134 of the Civil Procedure Act / [3] Article 3 of the former Cadastral Act (repealed by Article 2 of Addenda of the Act on Land Survey, Waterway Survey and Cadastral Records, Act No. 9774 of Jun. 9, 2009), Article 134 of the Civil Procedure Act

[1] Supreme Court Decision 95Da14794 delivered on July 30, 1996 (Gong1996Ha, 2630) Supreme Court Decision 96Da30199 delivered on November 28, 1997 (Gong1998Sang, 42)

Plaintiff 1 and six others (Attorney Jeong-young, Counsel for the plaintiff-appellant)

Korea

Suwon District Court Decision 2010Na1006 decided October 7, 2010

Of the part against the Defendant of the lower judgment, the part concerning the land 162 in the Gyeonggi-do, Gyeonggi-do, and the land 552 in the same Ri shall be reversed, and this part of the case shall be remanded to the Panel Division of the District Court. The remaining appeals shall be dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

In principle, land shall be specified by being registered with one parcel of land in the cadastral record, but land not registered in the cadastral record shall not be impossible to register in the cadastral record and to register ownership preservation based on the registration, if it is possible to specify by means of appraisal, etc. However, this is based on the premise that land can be specified (see, e.g., Supreme Court Decisions 95Da14794, Jul. 30, 1996; 96Da30199, Nov. 28, 1997).

Although the lower court did not have an official book, such as the forestry register for the land No. 1 in the instant case (referring to the land 162 in the Gyeonggi-do, Gyeonggi-do; hereinafter the same shall apply), the lower court determined that there was a benefit to seek confirmation of ownership against the Defendant for the purpose of registration of preservation of ownership, on the ground that it can be recognized that the forestry map was prepared at the Seocheon-gun Office, a cadastral authority, according to the entries and form of evidence No. 19 and the purport of the entire pleadings.

However, according to the records, it is difficult to view the evidence No. 19 submitted by the Plaintiff as a forestry map prepared by the cadastral competent authority, and there is no other data to view that the public records, such as the cadastral map of the above land, have been prepared to the cadastral competent authority. Therefore, it is difficult to view that the evidence cited by the lower court alone alone specified the land No.

Nevertheless, the court below erred in finding facts without evidence or in failing to exhaust all necessary deliberations by misunderstanding the legal principles as to land specification, which affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

2. On the second ground for appeal

In civil litigation, the object of the rights or legal relations between the parties should be specified, and if the object of the lawsuit is not specified, the object of the trial and the scope of the effect of the trial shall not be specified. Therefore, whether the object of the lawsuit for the confirmation of land ownership is specified or not belongs to the matter to be examined ex officio by the court as a litigation requirement.

According to the reasoning of the judgment below and the records, in the case of the land No. 5 (referring to the "land 552 E.S. E. Do-do-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si; hereinafter the same shall apply) of this case, the cadastral records such as the land cadastre and the cadastral map were entirely destroyed due to the incident No. 6 and 25 incidents, and the cadastral records were completely restored on December 31, 1980. However, around August 191, the above land was closed on the ground that the above land was located north of the Military Demarcation-ri-do-ri-do-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-).).

Nevertheless, without examining these issues, the court below accepted the plaintiffs' request for confirmation of ownership for the registration of ownership preservation on the land No. 5 for the reasons stated in its reasoning. Such measures by the court below are erroneous in the misapprehension of legal principles as to the specification, etc. of a subject matter of lawsuit, and it cannot be maintained clearly that they influenced the judgment. The grounds for appeal pointing this out are with merit.

3. As to the land listed in paragraph (6) of the attached list of real estate

Although the Defendant filed an appeal on this part, the Defendant did not state the grounds of appeal on the petition of appeal and the appellate brief.

4. Conclusion

Therefore, the part of the judgment below against the defendant as to the land 1 and 5 is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)