Plaintiff (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Korea

March 26, 2008

Suwon District Court Decision 2005Kadan42941 Decided June 29, 2007

1. The defendant's appeal and the plaintiff's incidental appeal are all dismissed.

2. Costs arising from an appeal and an incidental appeal shall be borne by each person;

1. Purport of claim

The Defendant: (i) the Plaintiff: (ii) the registration of initial ownership, which was completed on February 9, 1980 by the District Court of Kucheon-si Office of Macheon-si with respect to the size of 2,013 square meters prior to Macheon-si Leecheon-si (number 3 omitted); (iii) the registration of initial ownership, which was completed on July 31, 1996 by the same registry office with respect to the size of 4,130 square meters; (iv) the registration of initial ownership, which was completed on July 31, 1996 by the number of 21522; and (v) the registration of initial ownership, which was completed on December 17, 1996 by the registry office with respect to the size of 159 square meters prior to Macheon-si (number 3 omitted); and (v) the registration of initial ownership, which was completed on July 24, 1974; and (v) the registration of initial ownership, which was completed on July 24, 27, 1974.

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

3. Purport of incidental appeal;

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant will implement the registration of preservation of ownership, which was completed on July 31, 1996 by the receipt No. 21522 of the same registry office with respect to (i) 4,130 square meters of the Seocho-si Seocho-do Seocho-do, Pyeongcheon-si, the registration of preservation of ownership, which was completed on December 17, 1996 by the receipt of No. 36867 of the same registry office, and each procedure for registration of cancellation with respect to 159 square meters of the Seocho-do, Pyeongcheon-do.

1. Basic facts

(a) Person under circumstances;

In the land survey register prepared in the Japanese colonial era, it is written that Nonparty 1, who has an address in the male-do (Seoul-dong) Southern-dong (Seoul-dong), was investigated as follows: 5,391, and 3,885, and 1,370,000,000,000,000 in 1,370,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000

(b) Division and preservation of ownership;

(1) On February 9, 1980, the registration of preservation of ownership in the name of the Defendant was completed as of February 9, 1980 with respect to the instant land of 2,013 square meters (hereinafter “instant one”) prior to the separation from the Lee Dong-ri (number 2 omitted), which was again divided from the 5,391 square meters prior to the said Lee Dong-ri (number 1 omitted).

B. On July 31, 1996, the registration of preservation of ownership in the Defendant’s name was completed on the receipt of the same registry office on July 31, 1996, by the number of 21522 and the number of 36867 of the same registry office on December 17, 1996, with respect to the 4,130 square meters of the portrait (number 2 omitted) divided by 3,885 (number 2 omitted) and the 159 square meters of the portrait (number 3 omitted).

Article 22(1) of the Civil Act provides that the registration of the ownership of the Defendant’s name was completed on July 24, 1978 with respect to the same school building (number 1 omitted) and the same 533 square meters (number 2 omitted) divided by the same 1,370 square meters (hereinafter “instant 4 land”) and the same 264 square meters (hereinafter “instant 5 land”) prior to the Dong school building (number 3 omitted) divided by the same 1,370 square meters (number 1 omitted).

(c) Inheritance relationship;

On February 20, 1959, the deceased non-party 1, who died and succeeded to the property solely by the deceased non-party 2, his children. The deceased non-party 2 died on July 31, 1991, and the deceased non-party 3, the plaintiff, the plaintiff, the non-party 4, and the non-party 5 inherited the property. The remaining successors, other than the plaintiff, renounced the inheritance of each of the lands of this case and agreed on the division of the inherited property.

[Evidence] Facts without dispute, Gap evidence 1-1 to Gap evidence 2-5, Gap evidence 3-1 to 15, Gap evidence 4-1 to Gap evidence 5-5, the purport of the whole pleadings

2. Determination

A. Defendant’s duty to cancel registration of preservation of ownership

(1) First of all, when examining the situation names of each land of this case and the Plaintiff’s protocol as to whether it is the same person, the name of “○○○” and the Plaintiff’s protocol Nonparty 1, the Plaintiff’s protocol, are identical. According to the evidence No. 1-3, evidence No. 1-4, evidence No. 4-1, evidence No. 6, and evidence No. 7, the Plaintiff’s protocol Nonparty 1, the Plaintiff’s protocol Nonparty 2, around July 3, 1913, was a director of “Seoul-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-.

D. Meanwhile, unless there is any counter-proof such as the change of the circumstances by an adjudication, the person registered in the Land Investigation Book as the owner shall be presumed to have become final and conclusive upon being treated as the owner of the land (see Supreme Court en banc Decision 84Meu1773, Jun. 10, 1986, etc.). If it is revealed that there is a separate person in charge of the assessment of the land, the presumption of ownership preservation on each land of this case shall be broken, and the registration shall be null and void unless the registered titleholder asserts and proves the fact of acquisition by succession (see Supreme Court Decision 2002Da43417, May 26, 2005, etc.). Thus, the registration of ownership preservation on each land of this case, which is verified to have a separate person in charge of the situation, shall be the registration of invalidation

Then, the defendant has the duty to cancel the registration of initial ownership of each of the above lands to the plaintiff who succeeded to each of the above lands from the person under the assessment title of each of the above lands.

B. Judgment on the defendant's assertion

(1) As to the land of this case

㈎ 피고는, 위 토지가 망 소외 1로부터 소외 6 및 소외 8에게 순차 매도되어 원고에게 상속된 바 없으므로, 위 토지에 관한 청구권한이 없는 원고의 이 부분 청구는 이유 없다고 주장한다.

According to the records of Eul evidence No. 2, Eul evidence No. 9, Eul evidence No. 14-1, Eul evidence No. 14-1, Eul evidence No. 17-3, the land of this case was purchased from non-party 6 on January 19, 191 (1918) but sold the land to non-party 7 on July 15, 191 (192). The non-party 8 purchased the land from non-party 9 on March 21, 199 (194). The non-party 2 was merely the defendant's allegation that the land of this case was purchased from the non-party 25 on March 21, 19 (2 omitted) and that there was a lack of evidence to acknowledge the change in the right to the above land's name No. 288,70, which was written on the register of land cadastre and the distribution ledger of land No. 14-2, but it cannot be found that it was necessary to return the above land to the non-party 282.78.2.

㈏ 피고는, 1980. 2. 9. 이 사건 1토지에 관하여 피고 명의로 소유권보존등기를 경료한 이래 소유의 의사로 평온, 공연하게 위 토지를 점유하여 왔으므로, 등기부취득시효나 점유취득시효가 완성되었다고 주장한다.

According to each of the statements in Eul evidence No. 1-3, Eul evidence No. 1-3, since June 25, 1990, it is recognized that the defendant lent the land of this case to non-party 14, etc. from around June 25, 1990 to non-party 14, and had been occupied indirectly from that time, but there is no evidence to acknowledge that the defendant occupied the above land from February 9, 1980, and there is no reason to prove that the defendant occupied the above land for twenty (20) years. Thus, there is no reason to argue that the acquisition by prescription on the premise that the acquisition by prescription has been occupied for twenty (20) years, and the burden of proof is on the part of claiming the acquisition by prescription, so long as the defendant did not disclose the title of the above land, it is difficult to conclude that there was no negligence in the commencement of possession of the above land, and there is no other evidence to prove that the prescription acquisition by prescription has not been justified.

B. As to the land of this case 2 and 3

The defendant asserts that since the creation of the above land as a bank and reservoir around 1945, the acquisition by prescription has been completed by occupying and managing the above land in a peaceful and peaceful manner with the intent of ownership, it cannot respond to the plaintiff's request.

In full view of the statements in Eul, Eul evidence Nos. 7 and Eul evidence No. 10 and the whole purport of the pleadings as a result of the first instance court’s on-site inspection, the fact that the defendant mobilized village residents to supply agricultural water to neighboring farmland in around 1945 and constructed banks and created reservoirs by using the land No. 2 and 3 land of this case, and the State occupied and managed each of the above land as repair facilities through village conference after building reservoirs, and lent it to the Village Association from March 29, 199, and the Village Association occupied and used each of the above land as pay fishing place and passage for the use of the above land. Thus, according to the above facts of recognition, it is presumed that the defendant occupied each of the above land directly and indirectly from around 1945 and the defendant started possession of each of the above land without permission, as long as there is no evidence to prove that the possession of each of the above land was completed by the defendant’s peace and public performance.

Therefore, the registration of preservation of ownership in the name of the defendant with respect to the two and three lands of this case was a valid registration that conforms to the substantive relationship with the completion of the prescription for the acquisition of possession. Therefore, the defendant's above assertion is justified.

ally, as to the land of this case 4 and 5

㈎ 피고는, 위 각 토지가 망 소외 1로부터 소외 11에게 매도되어 원고에게 상속된 바 없으므로, 위 각 토지에 관한 청구권한이 없는 원고의 이 부분 청구는 이유 없다고 주장한다.

According to the evidence No. 3-1 to No. 4-2, Eul evidence No. 18-1, and Eul evidence No. 18-2, each of the records of this case 4-1 to Eul evidence No. 3-2, Eul evidence No. 18-1, and Eul evidence No. 18-2, there are records in the land redemption ledger and the land purchase and distribution ledger of each of the above land, and non-party No. 11 can recognize the facts that each of the above land was entered as the owner before the land was divided into Dong-dong (number No. 1 omitted). However, the distribution farmland repayment ledger and the land distribution register are merely documents prepared for other purposes, such as the redemption of the cost of distributed farmland or the completion of the farmland improvement project, and it is not presumed that the above farmland distribution documents were the persons with ownership under substantive law (see Supreme Court Decision 2005Da73211, Oct. 25, 2007), and there is no evidence to acknowledge the above land succession from the non-party No. 111.

㈏ 피고는, 1978. 7. 24. 이 사건 4토지와 5토지에 관하여 피고 명의로 소유권보존등기를 경료한 이래 소유의 의사로 평온, 공연하게 위 각 토지를 점유하여 왔으므로, 등기부취득시효나 점유취득시효가 완성되었다고 주장한다.

According to the statements in the evidence No. 1-4 through No. 7 of the above 4 from June 25, 1990, the defendant lent the above 4 land to the non-party 15, etc. from January 1, 1991 to the non-party 16 from January 1, 1991, it is recognized that the above 5 land was occupied indirectly from that time, but there is no evidence to acknowledge that the defendant occupied each of the above land from July 24, 1978, since the defendant had already registered the preservation of ownership of each of the above land, there is no reason to prove that the acquisition by prescription on the premise that the above land has been occupied for 20 years since July 24, 198. The acquisition by prescription of the register requires no negligence in the commencement of possession, and the burden of proof is on the part of the defendant's assertion for the prescriptive acquisition. Thus, as long as the defendant did not disclose the title of each of the above lands, it is difficult to conclude that there was no other evidence to prove the acquisition by prescription.

3. Conclusion

Therefore, the defendant is obligated to perform the registration procedure for cancellation of registration of cancellation of ownership preservation in the name of the defendant, which completed the registration of cancellation on the land of this case 1, 4 and 5. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Thus, the judgment of the court of first instance is justified as the conclusion is consistent with this, and all the defendant's appeal and incidental appeal of the plaintiff are dismissed. It

Judges Sung Pung-chul (Presiding Judge)