[1] The validity of the registration of transfer of ownership made under Article 9 of the former Act on Special Measures for the Organization of Farmland Reform Projects

[2] Whether the registration of ownership transfer under the former Act on Special Measures for the Adjustment of Farmland Reform Projects, which was made in the name of a juristic person or an unincorporated association, is presumed to be in conformity with the legal relationship under the substantive law (negative)

[3] In a case where the transfer registration of ownership in the name of the plaintiff that was made from the preceding preservation registration is null and void, whether the plaintiff has the right to request the cancellation of the registration for the subsequent preservation registration in the name of the defendant (negative)

[4] The case holding that the registration of transfer of ownership made in the name of a clan pursuant to Article 9 of the former Act on Special Measures for the Organization of Farmland Reform Projects by a clan who acquired or acquired farmland from a lender of farmland is null and void

[1] Article 9 of the former Act on Special Measures for Arrangement of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994) provides for procedures to allow a transferee or a former buyer who completed repayment to register the ownership transfer in a simplified manner in cases where a farmland distributor transfers or resells farmland distributed prior to the completion of repayment. As such, registration by such method is completed once registered, the nominal owner is presumed to be an owner in accordance with the procedure under Article 9 of the Act on Special Measures for Farmland Reform.

[2] According to Article 9 (2) of the former Act on Special Measures for the Adjustment of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994), a person who may acquire or resell the right to distributed farmland shall be a farmer under Article 3 of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994), and a farmer under the same Act shall be deemed to be a natural person. Thus, it is obvious that a juristic person or an unincorporated association cannot complete the registration of transfer of ownership in accordance with the procedure under the Act on Special Measures for the Adjustment of Farmland Reform Projects. Therefore, since the ownership transfer registration under the Act on Special Measures for the Establishment of Farmland Reform cannot be deemed to have been completed in the name of a juristic person or an unincorporated association, it shall be deemed that the presumption that it conforms to the legal relationship under the substantive law is broken.

[3] Unless special circumstances exist to the contrary, unless the transfer registration of ownership in the name of the plaintiff, which was made from the preceding preservation registration, is invalid, the plaintiff has no right to request the cancellation of the registration for the subsequent preservation registration in the name of the defendant. Thus, even if the subsequent preservation registration is null and void, the plaintiff cannot accept the plaintiff's request for cancellation registration without any title and order cancellation thereof.

[4] The case holding that the registration of transfer of ownership in the name of a clan is null and void on the ground that, where a clan which acquired or acquired farmland from a person who received farmland has completed the registration of transfer of ownership pursuant to Article 9 of the former Act on Special Measures for the Organization of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994, Article 2, Article 2, 2 of the Addenda to the Farmland Act), the distribution disposition against a person who received farmland is valid, and the registration of transfer of ownership in the name of a clan is not valid immediately since the distribution disposition against the person who acquired farmland from a person who received farmland is

[1] Article 9 of the former Act on Special Measures for Adjustment of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994) / [2] Article 9 (2) of the former Act on Special Measures for Adjustment of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994; Act No. 2 subparagraph 2 of the Addenda of the Farmland Act (repealed by Act No. 4817 of Dec. 22, 1994); Article 3 of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994; Act No. 214 of the Farmland Act) / [3] Articles 186 and 214 of the Civil Act / [4] Article 9 (2) of the former Act on Special Measures for Adjustment of Farmland Reform Projects (repealed by Act No. 2 of the Farmland Act No. 4817 of Dec. 22, 1994)

[1] Supreme Court Decision 89Meu6249 delivered on December 12, 1989 (Gong1990, 254) / [2] Supreme Court Decision 88Meu5331 delivered on May 23, 1989 (Gong1989, 976) / [3] Supreme Court Decision 89∑1900, 19917 delivered on May 22, 1990 (Gong1990, 1345)

Plaintiff’s clan (Attorney Noh Jeong-won, Counsel for plaintiff-appellant)

Korea

Seoul Central District Court Decision 2006Na5733 Decided December 15, 2006

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Article 9 of the former Act on Special Measures for the Adjustment of Farmland Reform Projects (repealed by Act No. 4817 of Dec. 22, 1994; hereinafter “Special Measures Act”) provides for the procedure for the registration of ownership transfer to a corporation or an association under the name of an incorporated association under Article 9 of the former Act on Special Measures for the Improvement of Farmland Reform, which is not a legal entity or an association under the name of an incorporated association under Article 9 of the former Act on Special Measures for the Improvement of Farmland Improvement (amended by Act No. 4817 of Dec. 2, 1994; hereinafter “Special Measures Act”). Thus, in cases where a farmland distributor transfers or resells distributed farmland before repayment, the transferee or the former purchaser is entitled to the registration of ownership transfer by simple methods. As such, registration by such method is once registered, the nominal owner shall be presumed to be an owner under the procedure prescribed in Article 9 of the former Act on Special Measures for the Improvement of Farmland Act (amended by Act No. 4817, Dec. 22, 1994).

According to the records, although the plaintiff completed a registration of transfer of ownership based on Article 9 of the Act on Special Measures for each land before subdivision, it is obvious that the plaintiff is a clan which is an unincorporated association and is not a farmer. Thus, each transfer of ownership under the plaintiff's name shall be deemed to be a registration of invalidation without any cause because the presumption of ownership transfer is reversed in

In addition, according to the records, since a registration of follow-up preservation under the name of the defendant was made concurrently in the name of the same person, registration of cancellation should be cancelled without examining whether it conforms to the substantive legal relationship. However, unless special circumstances exist to the contrary, unless the registration of transfer of ownership in the name of the plaintiff, which was completed from the prior preservation registration, is invalid, the plaintiff does not have the right to request cancellation of the registration of follow-up preservation under the name of the defendant. Thus, even if the registration of follow-up preservation is null and void, the plaintiff cannot accept the request for cancellation registration without any title and order cancellation thereof (see, e.g., Supreme Court Decision 89Meu1990, May 22, 1990).

2. The plaintiff, who completed the registration of ownership transfer pursuant to Article 9 of the Act on Special Measures, is not a person to whom farmland was distributed directly by the defendant's distribution disposition, but a person who acquired or acquired the farmland from the person to whom the farmland was distributed, and the distribution disposition against the person to whom the farmland was distributed is valid, and the registration of ownership transfer in the name of the plaintiff who acquired the farmland from the person to whom the farmland was transferred from

Nevertheless, on the premise that the Plaintiff was directly distributed farmland by the Defendant’s disposition of distribution, the lower court determined that the registration of ownership transfer in the name of the Plaintiff was not null and void on the ground that the Plaintiff was not a farmer, even though the Plaintiff was not a farmer at the time of the distribution of farmland, and that the cause was not a cause for revocation of the disposition of distribution of farmland, and that the registration of ownership transfer in the name of the Plaintiff did not become null and void on the ground that the Plaintiff was not a farmer. In so doing, the lower court erred by misapprehending the rules of evidence or misapprehending the legal principles on special measures, and that this affected the conclusion of the judgment

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)