Plaintiff (Attorney Park Young-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Young-young, Counsel for defendant-appellant)

May 11, 2004

Chuncheon District Court Decision 2001Kadan13842 delivered on September 3, 2003

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The Defendant shall implement the registration procedure for transfer of ownership on March 14, 2002 with respect to the portion of 700/1,612 out of the 2,426 square meters in Seocheon-dong (number 2 omitted) in the East Sea, Seocheon-dong (the deceased non-party in the judgment of the Supreme Court) in the East Sea.

2. Purport of appeal

The judgment below is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts can be acknowledged by comprehensively taking into account each of the statements in Gap evidence Nos. 1 through 5 and the testimony of non-party Nos. 2 and 3 of the court below.

A. In the same year, the rice-dong (number 1 omitted) 5,329 square meters (number 1 omitted) was originally owned by Nonparty 4. The said land was divided into 2,314 square meters (number 1 omitted; approximately 700 square meters; hereinafter the same shall apply) and 3,015 square meters ( around 912 square meters), and the land (number 2 omitted) was divided into 2,426 square meters (number 2 omitted) and 589 square meters (number 3 omitted).

B. On December 10, 1954, Nonparty 4 sold approximately 700 square meters of land (number 1 omitted) to Nonparty 5 prior to the subdivision. On March 11, 1965, Nonparty 4 completed the registration of transfer for 700/1,612 of land (number 1 omitted) and Nonparty 5 again sold the same portion to Nonparty 2 on the same day on March 15, 1971.

C. Around January 8, 1951, Nonparty 4 sold approximately 912 shares of the land (number 1 omitted) 2, 3, and 912 shares of the land (number 1 omitted) before the subdivision to Nonparty 6. On June 30, 1965, Nonparty 4 completed the registration of transfer with respect to the shares of 912/1,612 out of the land (number 1 omitted) before the subdivision. On March 13, 1989, the Plaintiff purchased the land of 2,3 from Nonparty 6 by specifying the shares of 912/1,612 out of the land (number 1 omitted) before the subdivision.

D. On March 16, 1989, the Plaintiff and Nonparty 2 divided the land (number 1 omitted) into the land (number 1 omitted) and the land (number 2 omitted) before the subdivision. Accordingly, the share in the land (number 1 omitted) before the Plaintiff and Nonparty 2 was divided into the land (number 1 omitted) and the land (number 2 omitted) before the subdivision.

E. On May 1, 1989, Nonparty 7, who represented by the Defendant, was notified by Nonparty 2 that the Plaintiff and Nonparty 2 occupy the land Nos. 1, 2, and 3 by specifying the Plaintiff. After setting up the current status of each of the above lands, Nonparty 2 purchased land Nos. 2 and 3 by specifying the land from Nonparty 2, and completed each registration of transfer as to the land (number No. 1 omitted) and (number No. 700/1,612 transferred to the land (number No. 2 omitted) before the split-off on May 3, 1989.

F. Each of the above lands was cultivated by sectional owners on the boundary of land No. 1 and land No. 2 and 3 when purchased by the original and the Defendant.

2. Determination:

According to the above facts, the land No. 1 is owned by the defendant, and the land Nos. 2 and 3 is owned by the plaintiff. The plaintiff and each share registration of the defendant with respect to each of the above land are registered through a mutual title trust registered from the land prior to partition (number No. 1 omitted) and the plaintiff and the defendant are in a sectionally owned co-ownership relationship. The fact that a duplicate of the complaint of this case containing the plaintiff's declaration of intent to terminate the title trust with respect to the land No. 2 was delivered to the defendant on March 14, 2002 is apparent in the record, so the defendant is liable to implement the ownership transfer registration procedure on March 14, 200 with respect to the share of 70/1,612 out of the land

In regard to this, the defendant raised a defense of simultaneous performance that the plaintiff could not perform the procedure for share transfer until he received the share transfer registration for the land No. 1 from the plaintiff. Thus, there is no evidence to acknowledge that the defendant terminated the mutual title trust for the land No. 1. Therefore, the defendant's defense is groundless.

3. Conclusion

If so, the plaintiff's claim is justified, and the judgment of the court below is justified, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Yong-tae (Presiding Justice) Kim Young-soo Kim Dong-dong