Plaintiff (the deceased Non-Party in the Supreme Court Decision) (Law Firm Innju General Law Office, Attorney Ha Sung-sung, Counsel for the plaintiff-appellant)

Korea

August 8, 2008

Suwon District Court Decision 2007Gadan38478 Decided October 11, 2007

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall execute the procedure for the cancellation registration of ownership preservation completed by the Gangnam-gu Seoul Central District Court, Gangnam-gu registry office of Seoul on January 30, 1991 (hereinafter in this case, the above land is deemed as 1, 2 land, and the land in the order of the order of 1, 1, and 2) with respect to the plaintiff's 215 square meters of land on the roads of 377 square meters of roads (number 1 omitted) in Gangnam-gu, Seoul Metropolitan Government and the roads of 215 square meters of land (number 2 omitted)

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

(a) Land surveys, etc.;

(1) The land survey drafted on July 31, 191, which was at the time of the Japanese land survey project, stated that the land survey was conducted on July 31, 191, the 492 square meters (number 3 omitted) and the 416th square meters (number 4 omitted) were owned by Nonparty 1 (hereinafter in this case, each of the above land before subdivision).

B. On May 3, 1953, Non-party 1 died and succeeded to the heritage by Non-party 2, his wife on July 12, 1974, and Non-party 3, 4, 5, 6, and 7, who is the plaintiff and his wife, jointly inherited the heritage. Non-party 4 also died on November 28, 1994, and Non-party 8 and 9, who is his wife, jointly succeeded to the heritage. The final heir of the deceased non-party 1, including the plaintiff, agreed on July 24, 2006 that the plaintiff shall solely inherit the heritage of the deceased non-party 1.

(b) Dividing land;

(1) On March 20, 1953, after the cadastral record such as the land cadastre before subdivision was destroyed due to a war on March 20, 1953, the land at the time when the old land registry was restored was restored, which was the land before subdivision, was restored to the 378 square meters and 1 square meters prior to the subdivision, and the land at the lux (number 4 omitted) of the land before subdivision was restored to the luxi (number 5 omitted), which was the land at the luxi (number 6 omitted) 106 square meters and 245 square meters from the luxi (number 6 omitted) and the luxi (number 7 omitted).

The remaining land in the previous land before Sheet division was listed on the above old land ledger, etc., but the land in this case was listed on the old land map, etc., which was re-preparationd on the basis of the cadastral source map and current status after the war on June 25, 200.

Article 28 of the Civil Code provides that the land of the case was incorporated into Seongdong-gu Seoul Metropolitan Government in 1963 and that Gangnam-gu was divided in 1975, and the land of the case became the Gangnam-gu Seoul Metropolitan Government Sejongdong.

(c) Registration of initial ownership, etc.

(1) The instant land has been used from the Japanese colonial era as a site for a road linking the Gwangju-si with the Gisung-si in Gyeonggi-do.

B. On March 6, 1972, the Seoul Special Metropolitan City Mayor, the Do governor, extended the scopic distance among the above roads to the scopic square, determined and publicly announced the land, etc. (number 6,7 omitted) as the scopic square site. Accordingly, the land of the scopic (number 6,7 omitted) was newly incorporated into the site of the scopic square, and the land category was changed to the road. On August 26, 2001, the price for the instant land was recognized and publicly announced as the Seoul Special Metropolitan City on August 26, 2001.

Article 22 of the Civil Act provides that “The land of this case is a road which connects the two Koreas to the Eastwest-gu Seoul Metropolitan Government and the Seoul Airport; “The land of this case is a road site in the East East-dong square, and the land of this case is a road site in the East-dong square, and the land of this case is a road site in the East-dong square (the land of this case is not incorporated into the road site at the time of the extension of the East-dong square, but has been used as the road site in the East-dong distance from that time).”

Applicant The defendant considered the land of this case as non-real estate and completed registration of ownership preservation in the future of the defendant on January 30, 1991, as stated in the purport of the claim regarding the land of this case (hereinafter the above registration of ownership preservation in the name of the defendant is called the registration of ownership preservation in this case).

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 10 evidence (including partial number, hereinafter the same shall apply), Eul's 1 through 11, and the purport of the whole pleadings

2. Determination on the duty to cancel the preservation registration and the recommendation for prescription acquisition

(a) Obligation to cancel the registration for preservation;

According to the above facts, the land in this case is presumed to be owned by the plaintiff, who is the deceased non-party 1's heir, and the defendant is obligated to implement the procedure for cancellation registration of the preservation registration in this case.

B. Determination as to the claim for ownership loss

(1) After the enforcement of the Civil Act, the Defendant asserts that the Plaintiff lost ownership pursuant to Article 10(1) of the Addenda of the Civil Act insofar as the Plaintiff did not complete the registration of ownership of the instant land after the enforcement of the Civil Act. However, Article 10(1) of the Addenda of the Civil Act concerning the acquisition, loss, and transfer of real rights to real estate due to a juristic act before the enforcement of the Civil Act is a provision concerning the acquisition, loss,

She also argued that since the instant land is a road site, the private person cannot assert his right to the instant land according to the Road Act, etc., the said assertion is groundless since the private land was incorporated into the road site and its ownership is not lost.

Secondly, the Defendant asserts that the Plaintiff did not exercise his right to the land of this case for a long time and the ownership was invalidated or the claim of this case goes against the good faith principle, but such circumstance alone does not deem that the ownership is invalidated or the claim of this case is contrary to the good faith principle. Therefore,

C. Determination as to the claim for the acquisition of prescription

(1) The defendant asserts that the land of this case was acquired by prescription.

In full view of the purport of the argument in the whole of the evidence written above, the land in this case was the land adjacent to the straight line (land 1) or the detailed schill (land 2) of the Hunne branch of the Hunne branch of the Hunne branch of the Hunne branch of the land among the Hunne branch of the land in this case at the time when the local highway (current Hunne branch of the Hunne branch; hereinafter Hunne branch of the Hun branch of the Hun branch) linked to the Hunne branch of the Hunne branch of the Hun branch of the land in this case was established in the period of Japanese War, and the land in this case was expanded to Hunne branch of the Hun branch before June 25, 200, and the land in this case was divided into the land in this case and newly incorporated into the site of Hunne branch of the Hun branch of the Hun branch of the Hunne branch of the Republic of Korea on June 25, 2006.

Article 28(1) of the Road Act provides that “If a private person’s land is transferred to a road site by way of donation or compensation even before the enactment and enforcement of the Road Act on January 1, 1962, it shall be deemed that the private person’s land has been occupied without the permission of the Seoul Special Metropolitan City or Gyeonggi-gu without the permission of the head of the Seoul Special Metropolitan City (or the Seoul Special Metropolitan City) prior to the war on June 25, 1962, it shall be deemed that the private person’s land has been occupied or disposed of without the permission of the head of the Gyeonggi-do or Seoul Special Metropolitan City (or the Seoul Special Metropolitan City) without the permission of the head of the Seoul Special Metropolitan City due to the alteration of the Gyeonggi-do and the administrative district, it shall be deemed that the possession of the land of this case has been occupied or acquired without the permission of the head of the Seoul Special Metropolitan City.” Therefore, it shall not be deemed that the land of this case has been occupied by the defendant, but shall have been occupied by the Seoul Special Metropolitan City for 20 years or more.

• However, insofar as the Seoul Special Metropolitan City has not completed the registration of ownership transfer for the land in this case, the plaintiff still can seek the cancellation of the registration of preservation in this case completed in the future as the owner of the land in this case, and the defendant, who is not the purchaser of prescription, cannot refuse the cancellation of the registration of preservation in this case on the ground of the prescriptive acquisition in Seoul Special Metropolitan City. Therefore,

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed.

Judges Lee Sung-gu (Presiding Judge)