The case holding that Gap's clan cannot be readily concluded to have held that Gap's clan title trust was made to the members of his family solely on the ground that Gap's graves were the graves for the common ancestor of Gap's clan, and therefore Gap's clan cannot seek cancellation of Eul's registration even if Eul's ownership transfer registration for the above forest land is null and void.

The case holding that Gap's clan cannot be readily concluded to have held that Gap's clan title trust was made to the members of his family solely on the ground that Gap's graves were the graves for the common ancestor of his clans, and therefore Gap's clan cannot seek cancellation of Eul's registration even if Eul's ownership transfer registration for the above forest land is null and void.

Article 186 of the Civil Act / [title trust] Article 187 of the Civil Procedure Act

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Park Jong-soo, Counsel for defendant-appellee)

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee and one other, Counsel for defendant-appellee)

Seoul High Court Decision 90Na12085 delivered on April 12, 1991

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal No. 2 are examined.

This case is a case where the plaintiff clan requested the defendant clan to cancel the registration of transfer of ownership in its name on the ground that the plaintiff clan is the deceased non-party 1 and the non-party 23, who is the title holder of the land in dispute of this case, for the purpose of preserving the right to claim the registration of transfer of ownership due to the termination of title trust against the successors of 24 persons, on behalf of their successors. Therefore, in this case, prior to whether the registration of transfer of ownership in the name of the defendant clan is presumed to have legal capacity, it should be clarified whether the plaintiff clan has the right as alleged above, and the plaintiff bears the burden of proof.

However, according to the reasoning of the judgment below and the records, the plaintiff did not actively prove this point, but it can be seen that 24 persons, the above circumstance, who are all the members of the defendant clan, are not all the members of the defendant clan. However, the plaintiff asserted in the principal of the forest of this case that there was the graves of the defendant clan 2, who are the joint members of the defendant clan, and that the above Hansung was paid the forest of this case as the plaintiff clan's failure, and the court below rejected the above assertion that the above Hansung had received the forest of this case as the plaintiff clan's failure.

Since the title holder of the land or forest land acquires the ownership of the land or forest land for the original purpose, the title holder of the forest land in this case acquires the ownership of the land or land due to the circumstances of the forest land. However, if the title holder of the forest in this case was trusted by the plaintiff clans or the defendant clans, it would be decided to what kind of substantive ownership belongs to a clan depending on which he actually received the trust from the plaintiff clans or the defendant clans, and in deciding this, the past ownership relationship can only be an indirect evidence for recognizing the fact of the trust. Therefore, in this case, since the title holder of the case was selected as the title holder of the plaintiff's clans or 24, who is the title holder of the situation in this case, was selected as the title holder of the land in this case, the fact that the plaintiff clans were the joint assistant of the plaintiff clans's clans, and that there was a grave in this case, even if the title holder did not have any title trust relation to the forest in this case, it cannot be concluded that the plaintiff clans claim cancellation of the title registration of the forest in this case.

Nevertheless, the court below held in its reasoning that the above woodland was installed in the above woodland and has been managed over several times, and that the above woodland was recognized by the authorities concerned at the time of the above woodland, and was entrusted in the name of 24 members of the clan. However, there is no evidence to recognize that the defendant clan alone acquired the above woodland, barring special circumstances, the above woodland is recognized as a clan owned by the plaintiff, which covers all the common ancestor of the highest common ancestor in which the tomb was installed and the common ancestor of not more than the above clans, although it is not clear whether the above woodland was acquired, and even if the defendant clan used the above circumstance procedure only, it cannot be deemed as the sole possession of the defendant clan under the above clans. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles of circumstances and in the misapprehension of the principle of burden of proof, which affected the conclusion of the judgment, and it is therefore justified.

Therefore, without examining the remaining grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.