2015Da251508 Registration of transfer of ownership

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

J

Changwon District Court Decision 2015Na33315 Decided November 11, 2015

March 24, 2016

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

The grounds of appeal are examined.

1. According to Article 25(1) of the Addenda of the Civil Act (amended by Act No. 471 of Feb. 22, 1958) and Article 11(1) of the Decree of the Shipbuilding, inheritance commenced prior to the enforcement of the Civil Act shall be customary. In the event that the head of a household dies before the enforcement of the Civil Act, inheritance of the head of a household’s heir by himself/herself is the custom at the time of the enforcement of the Civil Act (see, e.g., Supreme Court Decisions 90Meu2301, Oct. 30, 199; hereinafter “former custom”). Meanwhile, according to the custom before the enforcement of the Civil Act (hereinafter referred to as “former custom”), the head of a household died without the male heir’s inheritance. In the case of an unmarried person at the time of the death, the head of the deceased family’s husband and wife of the deceased head of a household, and in the case of a married person, the head of the deceased family shall be appointed by the deceased after the order of the deceased.

In addition, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act means that it does not need to be linked to the formal and legal evidence rules, and it does not allow a judge's arbitrary judgment. Thus, the fact finding should be in accordance with logical and empirical rules based on the principle of justice and equity based on the admissibility of evidence that has undergone lawful evidence examination procedures, and even if fact finding belongs to the discretion of a fact-finding court, it shall not go beyond the limit (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012). On the grounds indicated in its reasoning, the lower court determined that, on April 13, 2012, as K is an unmarried person under the former custom at the time of death, L is a single heir of each real estate listed in attached Table 1 of the lower court's judgment (hereinafter referred to as "each real estate of this case"), and since the Plaintiffs, who are inheritors, acquired the ownership of each real estate of this case, they acquired ownership in the future.

3. However, in full view of the reasoning of the lower judgment and the duly admitted evidence, the following circumstances are revealed.

가. 망 K의 제적등본을 살펴보면, 처 M의 난에 기재된 문구 전부를 판독하기는 어려우나 '昭和九年六...拾壹日K'(소화9년 6...21일K)이라고 기재되어 있는데, '昭和九年' 부분에 선을 그이 삭제하고 정정한 연도는 희미하기는 하지만 '檀紀四六七(단기4267)로 보이고, 일본의 연호인 昭和 9년과 단기 4267년은 모두 서기 1934년이다.

나. 망 K의 부 망 N의 제적등본을 살펴보면, 자부(子婦) M의 난에 '...昭和九年六月 拾臺日K婚姻国出同日入籍'이라고 기재되어 있는데, 일본의 연호인 소화 9년은 서기 1934년이고, '出 (계출)의 사전적 의미는 신고와 같은 말이므로, 그 기재에 의하면 K과 M은 1934. 6. 21, 혼인신고한 것으로 보인다.다. 한편, 전산으로 작성된 원고 A의 제적등본을 살펴보면, 양모 M 난에 M이 배우자를 K으로 하여 혼인신고를 한 날이 K이 사망한 후인 1963. 6. 21.로 기재되어 있다.

However, K died on September 9, 1953, and it is impossible to report M to K on June 21, 1963 after about 10 years passed since then on September 21, 1963. Thus, it seems that the public official in charge of family register was wrong in the process of moving the former family register to Korea by the electronic information processing system.

4. Examining the above circumstances in light of the legal principles as seen earlier, K and M completed the marriage report on June 21, 1934, and K were dead as a married person on September 9, 1953, and thus, it is reasonable to view that his/her mother, mother, wife, grandparent, etc. were temporarily inherited in accordance with the order of respect, according to the former custom at the time of the death.

5. Nevertheless, without sufficiently examining the above circumstances, the lower court found K to be an unmarried person at the time of his/her death, and determined that on such premise, the deceased L, his/her birth, according to the former custom, was the sole inheritance of each of the instant real estate.

Therefore, the judgment below erred by failing to exhaust all necessary deliberations and by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

6. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below 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 Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young