A. Whether a specific owned part of the land before replotting is specified even after replotting (negative)

B. Whether a co-owner occupies all co-owned land frequently (negative)

A. In a case where a part of the previous land is owned by specifying it and the entire land becomes a substitute lot, if there is a change in the cadastral, shape, and location of the entire previous land due to the substitute lot, the specific portion of the previous land after the substitute lot cannot be deemed to be specified as it is as its cadastral, shape, and location, barring any special circumstances.

B. Even if one co-owner occupies the entire land, it shall not be deemed that it is the possession of another co-owner within the limit of the share ratio of the other co-owner.

A. Article 62 of the Land Readjustment Project Act

A. Supreme Court Decision 71Da2589 delivered on September 26, 1972, 80Da2157 delivered on February 10, 1981, Supreme Court Decision 67Da2862 delivered on April 30, 1968

Plaintiff (Counter-Defendant) 1 and three others Plaintiffs (Attorney Ahn Byung-soo, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Seo-ho et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Defendant 2

Daegu High Court Decision 86Na478, 479 (Counterclaim) decided May 12, 1987

Of the lower judgment, the part against the Plaintiffs regarding the counterclaim is reversed, and that part of the case is remanded to the Daegu High Court.

The remaining appeals by the plaintiffs are dismissed, and the costs of appeal against this appeal are assessed against the plaintiffs.

1. We examine the grounds of appeal No. 1 by the Plaintiff (Counterclaim Defendant, Plaintiff 2) as the first ground for appeal by the Plaintiff’s attorney.

(1) The court below held that the deceased non-party 1’s property heir Kimcheon-si ( Address 1 omitted) 1 to 9 and 12 to 12 are sold to the defendant (Counterclaim Plaintiff, Defendant 2 omitted), and the non-party 2 to 11 to 2 respectively, and that such fact-finding is in violation of the rules of evidence.

According to the records, the court below's trial records revealed that (No. 2 omitted) large 12 of each of the above lands was sold by the deceased non-party 1 to the deceased non-party 3, the deceased non-party 1, the deceased non-party 1, but did not sell the land to the defendant 1, but the mistake of facts does not affect the conclusion of the judgment, and all other facts of selling the land are legally recognized. Thus, the above argument is groundless.

(2) Next, the following arguments asserted that the lower court’s rejection of the Plaintiffs’ claim on the premise that the portion owned by the Plaintiffs was classified as the portion owned by the Plaintiffs was unlawful, on the ground that: (a) the lower court, even though it was evident by the macro evidence of the lower judgment, it was justifiable to have rejected the Plaintiffs’ claim on the premise that the Plaintiffs’ claim was unjustifiable, under the premise that the portion owned by the Plaintiffs was specified as the portion owned by the Plaintiffs and that the portion owned by the Plaintiffs was owned by the Plaintiffs. (b) The lower court’s rejection of the Plaintiffs’ claim on the ground that the Plaintiffs’ claim was based on the premise that the portion owned by the Plaintiffs was owned by the Plaintiffs, and that the portion owned by the Plaintiffs was owned by the Plaintiffs.

However, even if the trial evidence of the court below is examined closely according to the records, there is no evidence to recognize that each owner agreed to own it separately according to the previous land location, and there is no evidence to prove that each owner agreed to own it.

(3) In addition, even if there was no such agreement as above, if substitute land was substituted as above, the previous land owner shall be deemed to own the previous land independently by specifying the location of possession thereof.

However, in a case where a part of the previous land is owned by specifying the whole land as a unit replotting, if the whole land is changed in the cadastral, shape, and location of the whole land of the previous land due to replotting, barring any special circumstance, the specific ownership of the previous land cannot be deemed to be specified as it is as its cadastral, shape, and location even after replotting (see Supreme Court Decisions 71Da2589, Sept. 26, 1972; 80Da2157, Feb. 10, 1981).

According to the records, it is evident that the land size of 6 parcels, including the previous land Kimcheon-si (No. 4 omitted), 157.6 square meters is cut at 125 square meters in 2 parcels, such as (No. 5 omitted), and the land substitution has occurred, and the land size, shape, and location has changed. Therefore, it cannot be deemed that the land owned by the plaintiffs was specified as the land owned by the plaintiffs as it was in the state of the previous land owned by the plaintiffs. On the other hand, there is no reason for debate, the precedent of the party members cited for the argument cannot be a proper precedent in this case.

2. We examine the second ground for appeal.

According to the facts duly established by the court below, the 89.4 square meters of the land of this case is owned by several persons including the plaintiffs, and it cannot be deemed that they were classified into sole ownership by the plaintiffs. Such co-owned land shall be deemed to be occupied by another co-owner within the scope of the share ratio of other co-owners (see Supreme Court Decision 67Da2862 delivered on April 30, 1968). In this regard, the judgment below which held the plaintiffs' possession as the possession by the nature of the title is justified.

Therefore, it is unreasonable to charge the judgment of the court below on the premise that the registration of co-ownership of the above land is merely a form of the registration, and actually, it is specified as the sole ownership of the

3. We examine the ground of appeal No. 3.

(1) According to the reasoning of the judgment below, the court below acknowledged the following facts: (a) on August 24, 1960, the deceased non-party 3 and the deceased non-party 1, who owned the above non-party 3, exchanged between 48 square meters and 12 square meters among 111 square meters on August 24, 1960 and ( Address 2 omitted) the above non-party 1 owned by the above non-party 1; and (b) thereafter, the above non-party 1’s property heir sold the above 48 square meters exchanged to Defendant 1.

(2) However, examining the evidence of the court below, we affirm the measures that the court below recognized that part of the above non-party 3's ( Address 4 omitted) 111 and the above non-party 1's ( Address 2 omitted) are exchanged between the above non-party 1 and the above non-party 1's ( Address 2 omitted). However, there is no clear evidence that the part exchanged between the above ( Address 4 omitted) 111 is 48 square meters as follows.

The main evidence recognized by the court below as exchanging 48 square meters among the above ( Address 4 omitted) 111 is the evidence No. 1 (Land Sales Contract), evidence No. 6-6 (Interrogation of Suspect), and the testimony of Non-Party 4 of the court below.

(A) First of all, subparagraph 1 is a sales contract for selling the land exchanged by Nonparty 1 to Defendant 1. However, the date on which the sales contract was prepared is August 20, 1968, which includes “48 square meters of the site.” However, according to the records, six parcels, such as the above (No. 4 omitted), large 111 square meters, etc., are already disposed of as two parcels, such as (No. 5 omitted) before the above sale, and the land substitution registration was completed on September 13, 1967. Thus, it is obvious in the records that the previous parcel number is not existing in the sales contract that was prepared at least one year after the land substitution registration, and it is difficult to recognize that the above sales contract was the land exchanged by Nonparty 1 from Nonparty 38 on the ground that there was no specific portion of 48 square meters in detail.

(B) According to the contents in Eul evidence 6-6 and the testimony of non-party 4, the non-party 4, who is the wife of the above non-party 1, stated that the non-party 3 was exchanged from the above non-party 3 in the form of sale and purchase and sold the 48 square meters to the defendant 1, who is a different quality. However, the sales contract with the above non-party 3 is not lost, and there is no clear statement as to which part of the 48 square meters were specified, and thus, it is not reliable.

Rather, according to the above evidence No. 6-6, the above non-party 4 stated that the sales contract with the above non-party 3 did not specify it as 48 square meters of the subject matter of sale, and that the part possessed by the above non-party 1 was exchanged with the boundary between the above non-party 3's house and the house of the non-party 1's house. Meanwhile, the above non-party 3's heir who exchanged the above part of the non-party 1's possession with the boundary of the above wall as well as the above non-party 3's heir who exchanged the above part of the non-party 1's possession with the boundary of the wall, it is argued to the effect that the area is merely 30.7 square meters (see evidence No. 6-10). Thus, it is difficult to confirm how much the exchange land area

(3) Ultimately, the judgment of the court below recognized that the land exchanged by Nonparty 3 to the above Nonparty 1 without legitimate evidence is 48 square meters and calculated the plaintiffs' share to transfer to Defendant 1 based on this. This constitutes a serious violation of law affecting the judgment, which constitutes the ground for reversal under Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

4. Therefore, the part of the judgment of the court below against the plaintiffs regarding the counterclaim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's remaining appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition

Justices Lee Jae-seok (Presiding Justice)