[1] Presumption of the change of owner in the old land cadastre to which the former Enforcement Decree of the Cadastral Act applies

[2] In a case where the ownership of the former Enforcement Decree of the Cadastral Act is registered after the death of the nominal owner prior to the land cadastre, whether it can be presumed that the specific person acquired the ownership (negative in principle)

[1] Article 3 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 5015, May 16, 1970) provides that matters concerning the acquisition, loss, and change of land ownership shall not be registered on the land cadastre without notification of the registry office. Thus, the entry of change of land owner on the former land cadastre shall not be deemed to have been made by notification of the registry office pursuant to this provision. Therefore, if the ownership of a specific person is registered on the former land cadastre, barring any special circumstance, it shall be deemed that the ownership transfer was made in its name and the specific person acquired ownership at that time.

[2] The registration of transfer of ownership filed in the name of the former owner after the death of the former owner, and the registration of transfer of ownership filed in the name of the former owner has already existed, but in the absence of an application for registration, if the predecessor lives in the case where the inheritance commenced with the person liable for registration, then his/her application for registration was filed by the heir, or where special circumstances are acknowledged, such as the death of the principal or his/her agent before the completion of the registration after the registration was received by the registry official, the registration shall be deemed invalid and there is no room for recognizing the legal capacity of the registration. Therefore, even in the entry of change of the owner on the old land cadastre to which the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 5015, May 16, 1970) applies, if the former owner is registered as transfer of ownership from the former owner to a specific person after the death

[1] Article 186 of the Civil Act, Article 3 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 5015 of May 16, 1970) / [2] Article 186 of the Civil Act, Article 3 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 5015 of May 16, 1970) (current deletion)

[1] [2] Supreme Court Decision 2003Da3157 decided Sep. 3, 2004 (Gong2004Ha, 1644) / [1] Supreme Court Decision 94Da32900 decided Jul. 14, 1995 (Gong195Ha, 2784), Supreme Court Decision 95Da14701, 14718 decided Sept. 5, 1995 (Gong1995Ha, 3349), Supreme Court Decision 2001Da78768 decided Feb. 22, 2002 (Gong2002Sang, 763)

[Judgment of the court below]

Korea

Seoul Central District Court Decision 2007Na3390 Decided October 18, 2007

Of the part against the plaintiff in the judgment of the court below, the part of the judgment against the plaintiff as to 2-6 m2,387 m2, 3-2, 810 m2, and 906 m24-5 m2, each of which is reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The remaining appeal by the plaintiff is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The portion claimed with respect to 2-6m2,387m2, 3-2, 810m2, and 24-5m2, 906m2, e.g., one-dong-dong-dong-dong-dong-si;

According to Article 3 of the former Enforcement Decree of the Cadastral Act (amended by Presidential Decree No. 175 of Dec. 31, 1960; hereinafter the same) Article 3, matters concerning the acquisition, loss, and change of land ownership shall not be registered on the land cadastre without notification by the registry office. Thus, the entry of change of land owner on the former land cadastre cannot be deemed to have been made by notification by the registry officer pursuant to this provision. Therefore, if the ownership of a specific person is registered on the former land cadastre, unless there are special circumstances, the registration of land ownership transfer should be completed in its name and the specific person acquired ownership at that time (see Supreme Court Decision 94Da32900, Jul. 14, 1995, etc.).

However, the ownership transfer registration filed under the name of the former owner after the death of the former owner has already existed, but there is no room to presume that the former owner acquired ownership of the specific person, except in special circumstances where the former owner is registered as transfer of ownership from the former owner after the death of the former owner, if the decedent is living in the case where the inheritance has commenced with the person liable for registration during the absence of the application for registration, or where the former owner applies for registration before the registration is completed, or where special circumstances are acknowledged such as the death of the principal or his agent before the registration is completed after the registration is received by the registration officer (see Supreme Court Decision 2003Da3157, Sept. 3, 2004, etc.).

The lower court, based on the evidence in its holding, acknowledged the fact that Nonparty 1, the assessment title holder of each of the above lands, was indicated as the ownership holder on March 19, 1962, and that ownership was transferred to the Defendant on March 19, 1962, and rejected the Plaintiff’s claim for the procedure of registration of cancellation of ownership registration of each of the above lands as to the Defendant’s acquisition of ownership around that time according to the presumption of ownership change given in the old land

However, according to the records, it is recognized that Nonparty 1, the title holder of the circumstances concerning each of the above lands, died on or around January 9, 1919. Since the defendant was registered in the old land cadastre on March 19, 1962 as being transferred the ownership from Nonparty 1 on March 19, 1962 after Nonparty 1 died, the defendant cannot be presumed to have acquired the ownership unless the defendant asserts and proves special circumstances that he lawfully received the ownership as stated in the above legal principles.

Nevertheless, the court below erred by misapprehending the legal principles that the defendant acquired the ownership of each of the above real estate in this case where there is no assertion or proof of the above special circumstances by the defendant, and the ground of appeal pointing this out has merit.

2. The portion claimed with respect to 722-5 Masan-ri, 891 m2, 722-13 m2, 1,275 m2, and 482 m2 m2,000 m2,000 m2,000

The court below held, based on the evidence of its ruling, that each of the above lands is indicated by Nonparty 2 as a person in charge of the distribution of farmland land list and the owner on the old land cadastre, and around that time, Nonparty 2 lawfully acquired ownership of each of the above lands through the farmland distribution procedure under the Farmland Reform Act, and Nonparty 1 lost ownership of each of the above lands at that time. In light of the records, the judgment of the court below is just, and there is no error of law such as misunderstanding

3. Conclusion

Therefore, the part of the judgment below against the plaintiff is reversed, among the part against the plaintiff, as to 2-6 m2,387 m2, 3-2, 810 m2, and 906 m24-5 m2, each of which part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)