Plaintiff 1 and two others (Law Firm Han-U.S., Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Korea

September 12, 2008

Seoul Central District Court Decision 2007Gadan9731 Decided November 27, 2007

1. Paragraph 1 of the order of the first instance judgment, including the plaintiffs' claims extended in the trial, shall be amended as follows.

The defendant will implement the procedure for cancellation of registration of cancellation of registration of ownership preservation, which was completed on July 29, 2004 by receipt No. 25461, for the real estate stated in the separate sheet to the plaintiffs.

2. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Defendant performed the procedure for registration of cancellation of the registration of the preservation of ownership, which was completed on July 29, 2004 by receipt No. 25461 on the real estate stated in the separate sheet to the Plaintiffs (the Plaintiff claimed cancellation of the registration of the preservation of ownership with respect to co-ownership of the real estate listed in the separate sheet, and extended the purport of the claim by claiming cancellation of the registration of the preservation of ownership with respect to all the above real estate at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

The following facts may be acknowledged either in dispute between the parties or in accordance with Gap evidence Nos. 1, 2, 4, 5, 10, 14, and Eul evidence Nos. 3 and 9 through 11, by integrating the whole purport of the pleadings:

A. In the Land Survey Book prepared in the Japanese colonial era, Nonparty 1, who has an address in the Seocho-gun, Macheon-gun, outside the Seocho-gun, was registered as the owner of the Songcheon-gun, 171 large 50 square meters (hereinafter “instant land”).

B. The cadastral record on the instant land was destroyed at the time of the incident, and was restored to its original state at the time of the incident, and thereafter, the instant land became a real estate recorded in the attached list due to changes in the name, land category, etc. of the administrative district, and the Defendant completed registration of preservation of ownership on the instant land on July 29, 2004.

C. Although the instant land had been occupied by a house, it was destroyed by a fire, along with the building uniting the instant land during the Korean War. Meanwhile, on December 27, 1966, the Defendant incorporated the instant land into the National Highway No. 43 on December 27, 1966, and the instant land has been continuously used as a road passing by the vehicle until now.

D. Nonparty 1, the Defendant’s fleet, had his permanent domicile in the Songcheon-gun, the Republic of Korea, 171. However, Nonparty 1 died on May 26, 1942 (Fire 17), and Nonparty 5 inherited the property, and Nonparty 5 died on May 10, 1961 (short-term 4294), and jointly succeeded to the property by Nonparty 6, Plaintiff 1, and 3, who is a child. In addition, Nonparty 6 died on July 19, 191, and Plaintiff 2, who is an infant, jointly succeeded to the property.

2. Determination on the cause of the claim

A. Whether the person and the representative of the plaintiffs are the same person

In light of the above facts, the name of Nonparty 1 and Nonparty 1, who is the name of the situation of the land in this case, are the same as the name of Nonparty 1 and the plaintiffs, and Nonparty 1, who is the plaintiffs, established the permanent domicile on the land in this case. In addition, according to the evidence No. 12, the name of the defendant, who is the name of the non-party 1, who is the name of the situation, was changed to the name of the Songcheon-gun-gun-gun, Macheon-gun, Macheon-gun, Macheon-gun, Macheon-gun, Macheon-gun. In addition, according to the records No. 12, the name of the non-party 1 and the non-party 1, who is the name of the situation, was changed to the name of the Songcheon-gun-gun, Macheon-gun, Macheon-gun, Macheon-gun, Macheon-gun, Macheon-gun, the legal domicile of the plaintiffs.

(b) Estimated history of registration of preservation of ownership;

A person registered in the Land Survey Book as an owner of land shall be presumed to be the owner of the land and shall be presumed to have become final and conclusive unless there is any counter-proof such as the change in the situation by the adjudication and the original acquisition thereof (see Supreme Court Decision 98Da13686, Sept. 8, 1998). If it is found that a person other than the title holder of the preservation registration was subject to the assessment of the relevant land, the presumption of preservation of ownership is broken if it is found that the person other than the title holder of the preservation registration was subject to the assessment of the relevant land, and thus, the registration shall become null and void (see Supreme Court Decision 96Da16247, Jun. 28, 1996).

As long as it has been revealed that there is a separate title holder for the instant land, the registration of preservation of ownership in the Defendant’s name is the registration of invalidation of cause by destroying the presumption capacity. Thus, the Defendant is obliged to implement the registration procedure for cancellation of ownership preservation as requested by the Plaintiffs who succeeded to co-ownership shares from Nonparty 1, who was assessed on the instant land, as the Plaintiffs who succeeded to co-ownership from the former co-ownership as an act of preservation of co

3. Judgment on the defendant's assertion

A. The plaintiffs' preemptive right to the land of this case was lost

The defendant asserts that since the non-party 1 sold the land of this case to the non-party 2 on October 16, 1928, the non-party 1 has already lost the ownership of the land of this case.

In light of the following circumstances, Gap evidence 13, Eul evidence 4 through 6, 8, 12, and 16, and the witness of the court of first instance acknowledged by the non-party 7, i.e., the non-party 1 sold the land to the non-party 2 on October 16, 1928 (Fire 3), and the non-party 3 purchased the land from the non-party 4 on December 13, 1937 (Fire 12) and the non-party 4 on August 30, 1948, the non-party 4 purchased the land from the non-party 5's residential address and the non-party 5's residential address on August 30, 194 to the non-party 4, and the non-party 5's residential address on August 30, 194 to the non-party 6's residential address on which the non-party 4 was located.

However, it cannot be readily concluded that the registration of ownership transfer has been completed in the future on the person liable for tax payment on the ground that the registration of ownership transfer was made for the administrative purpose of imposing taxes by notifying the competent authority of the change of ownership pursuant to the law, such as the forestry cadastral book or the land cadastral book (see Supreme Court Decision 88Da23278, 23285, Jul. 25, 1989; Supreme Court Decision 93Da6091, Oct. 28, 1994; 93Da6091, Oct. 28, 1994). Although the above three names indicate that the buyers of the above land were to purchase the land of this case, it is difficult to recognize the fact that the buyers completed the registration of ownership transfer on the land of this case by Nonparty 2, etc. as the owner of the land of this case, Nonparty 1, 5, who was the owner of the land of this case, and Nonparty 2, the purchaser of this case did not have any evidence to acknowledge that the registration of ownership transfer was completed.

However, if a person who acquired real estate at the time of the enforcement of the former Civil Act fails to register the ownership transfer within six years from January 1, 1960, the enforcement date of the Civil Act, the change of real right becomes null and void pursuant to Article 10 (1) of the Addenda to the Civil Act, and the ownership of the real estate is returned to the transferor, who is the original owner (see Supreme Court Decision 91Da11261, Aug. 13, 191). Unless there is any evidence to prove that the purchaser of the land of this case completed the registration of ownership transfer, the ownership of the land of this case is deemed to have been returned to Nonparty 1, who is the original owner, and eventually, it cannot be deemed that Nonparty 1 lost the ownership of the land of this case

B. The assertion for prescriptive acquisition

First of all, the defendant, on December 1, 1938, the Japanese colonial era, transferred the land of this case to the site of the national highway No. 4 line, and used it as the road since that time. Since the defendant succeeded to possession even after the tidal wave and used it as the road, the acquisition by prescription on the land of this case was completed on December 1, 1958, and the registration of preservation of ownership of the defendant is valid registration in accordance with the substantive legal relationship.

According to the evidence Nos. 1 and 2 of this case, it can be acknowledged that the neighboring land of this case was incorporated into a national highway No. 4 of this case under the Joseon Road Order on December 1, 1938, and the present land is currently being used as a road. Meanwhile, according to the evidence No. 2 and No. 5 of this case, according to the evidence No. 2 and No. 5 of this case, the land category of this case was written as a site after the destruction of the cadastral record due to a disaster of June 25, 1970, and the land category of this case was changed to a road only on May 26, 1970. In light of this, the facts acknowledged above alone are insufficient to recognize that the land of this case was incorporated into a national highway No. 4 of this case as a site for national highways around December 1, 1938, and there is no other evidence to prove otherwise. Thus, this part of the defendant's assertion is without merit.

In addition, the defendant, on December 27, 1966, as the land of this case was incorporated as a site for national highways 43, and used as a road from that time. Thus, on December 27, 1986, the prescription for the acquisition of possession of the land of this case was completed, and the defendant's registration for preservation of ownership was valid registration in accordance with the substantive legal relationship.

In a case where a party, a local government, or a state, without a specific title, takes the procedure for acquiring public property, such as one’s own expenses or donation, etc., or incorporates a private land into a road site without a specific title that may possess the land, such as obtaining the consent of its owners, the presumption of autonomous possession should be deemed to be broken and the possession of the land (see Supreme Court Decision 97Da30349 delivered on May 29, 198). Since there is no evidence to deem that the defendant followed the procedure for acquiring State property under the State Property Act or the commencement of possession with the title to possess the land of this case, the presumption of autonomous possession is broken. Accordingly, the defendant’s assertion on this part, premised on the defendant’s possession is independent possession, is without any justifiable reason.

4. Conclusion

Therefore, the defendant is obligated to execute the procedure for registration of cancellation of the registration of cancellation on the land of this case. Thus, the plaintiffs' claim of this case seeking the implementation of the procedure for registration of cancellation is justified, and the judgment of the court of first instance on the previous claim is just in conclusion, and the defendant's appeal against this is groundless. However, as the plaintiffs' claim expanded in the trial is accepted additionally, it is decided to modify the disposition of the court of first instance as above, and it is so decided as per Disposition.

[Attachment of List]

Judges Choi Pung (Presiding Judge)