[1] In the case of registration of transfer filed under the name of the deceased, whether the legal capacity for registration is recognized (negative), and the person who bears the burden of proving that the above registration conforms to the present substantive relationship (=a person who asserts the validity of registration)

[2] In cases of provisional registration made at the time of application of the Civil Code and the Registration of Real Estate Act, whether it can be presumed that specific grounds for registration exist (negative), and whether this is the same as in cases of provisional registration made under the current Civil Code and the Registration of Real Estate Act (affirmative)

[1] The registration of transfer, which was filed under the name of the deceased, shall be deemed to be a registration invalidation of cause, and there is no room for recognizing the legal capacity of registration. Therefore, the person who asserts the validity of registration shall be liable to prove that

[2] It cannot be presumed that a specific ground for registration exists in a provisional registration made at the time of applying the Civil Act and the Registration of Real Estate Act. The presumption power of a specific ground for registration of a provisional registration is denied even in relation to a provisional registration made under the current Civil Act and the Registration of Real Estate Act.

[1] Article 186 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 88 of the Registration of Real Estate Act, Article 186 of the Civil Act

[1] Supreme Court Decision 83Meu597 Decided August 23, 1983 (Gong1983, 1417), Supreme Court Decision 2017Da360, 377 decided December 22, 2017 (Gong2018Sang, 309) / [2] Supreme Court Decision 63Da114 decided April 18, 1963 (No11-1, 254), Supreme Court Decision 79Da239 decided May 22, 197 (Gong1979, 11982), Supreme Court Decision 91Da36932 decided February 11, 1992 (Gong192, 101)

Plaintiff (Law Firm Pyeongtaek, Attorneys Kim Young-hee et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm LLC, Attorneys Kim Nung-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Na2027707 decided December 1, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The Plaintiff asserted that, as the heir of the deceased non-party 1, who was the nominal owner of the ownership transfer registration of this case, the registration of correction of ownership transfer registration that was completed in the future Non-party 2, who was the deceased non-party 1, who was the deceased non-party 2, who was the decedent of this case, was null and void, based on the registration of correction, cancellation of the registration of correction, and cancellation of ownership transfer registration that was completed in the future of the Defendants based on the above correction registration. If the Plaintiff’s ownership is not recognized, the Plaintiff’s claim of this case cannot be accepted, regardless of whether the registration of correction in the deceased non-party 2

2. A. A. Registration of transfer filed under the name of the deceased constitutes registration invalidation, and thus, there is no room to acknowledge the admissibility of registration. Therefore, the person who asserts the validity of registration is liable to prove that the registration conforms to the present substantive relationship (see, e.g., Supreme Court Decisions 83Meu597, Aug. 23, 1983; 2017Da360, 377, Dec. 22, 2017).

The lower court acknowledged the fact that the instant transfer registration was made on June 8, 1952 from February 11, 1951, the deceased non-party 1, the title holder of the deceased non-party 1, the deceased non-party 1’s death, and determined that it is difficult to recognize the fact that the deceased non-party 1’s heir completed the instant transfer registration in accordance with the registration-related Acts and subordinate statutes on the sole basis of the evidence submitted by the Plaintiff cannot be recognized. The lower court’s aforementioned determination is justifiable on

B. However, on the grounds delineated below, the lower court determined that the instant registration of ownership transfer conforms to the substantive relationship is valid due to extenuating circumstances.

① Since the fact that a real estate registration exists formally is presumed to have completed a lawful cause of registration itself, it is presumed that the provisional registration of this case was completed by a legitimate cause of registration. Furthermore, since the grounds for registration of this case “Seoul District Court Decision on Provisional Disposition of July 4, 1947,” the reason for registration of this case is “the Seoul District Court Decision on Provisional Registration of July 4, 1947,” it can be deemed that the reason for registration or provisional registration exists between the deceased Nonparty 1, the seller, Nonparty 3, and Nonparty 4

② After the provisional registration of this case, the provisional registration of this case remains valid for about five years, without cancelling the provisional registration of this case, and during that period, Nonparty 3 and Nonparty 4, the seller of this case, filed an objection or lawsuit against the provisional registration of this case or the registration of transfer of ownership. Therefore, Nonparty 3 and Nonparty 4 also agree with the existence of grounds for registration related to the transfer of ownership as to the land of this case. Furthermore, if Nonparty 2 was the actual right holder of the land of this case, the registration of transfer of ownership in one’s own name was completed under the deceased Nonparty 1.

C. First, we examine the part of the lower judgment.

The provisional registration of this case was made at the time when the Civil Code and the Registration of Real Estate Act were applied, and the Supreme Court held that the provisional registration cannot be presumed to exist at the time of the application of the above Act (see Supreme Court Decision 63Da114, Apr. 18, 1963). The Supreme Court's position denying the presumption power of specific grounds for registration of provisional registration was equally maintained as to the provisional registration made under the current Civil Code and the Registration of Real Estate Act (see Supreme Court Decisions 79Da239, May 22, 1979; 91Da36932, Feb. 11, 1992, etc.). As long as the presumption power of provisional registration completed pursuant to the Civil Code and the Registration of Real Estate Act, the provisional registration of this case cannot be presumed to exist.

D. Next, the lower court’s judgment is examined as to ②.

According to the facts acknowledged by the court below, since the registration of this case was completed one month after the time when the transfer registration of this case was completed on June 8, 1952 in the deceased non-party 1, and the registration of this case was completed in the future of the deceased non-party 2, and the defendants' future transfer registration was completed in the future. Thus, unless it is proved that the non-party 3 and non-party 4 are aware of the ownership of the deceased non-party 1 for a short period of time under the name of the deceased non-party 1, it is not sufficient to find that the circumstance of the court below alone corresponds to the substantial relation.

Furthermore, the Plaintiff asserted that around 1977, he was aware of the fact that the registration of the instant correction was made, but did not assert active rights by working in the Defendant Yong-Nam Enterprise Co., Ltd. located on the instant land from February 2004, and did not take any measures or actions to have been taken by the land owner until the filing of the instant lawsuit for a long period of time until 2016.

E. Nevertheless, the lower court presumed that there was a specific cause for registration of the instant provisional registration, and based on the erroneous premise that the legal relationship, which caused the instant provisional registration, is related thereto, and concluded that the instant ownership transfer registration conforms to the substantive relationship, and concluded that the Plaintiff, the deceased Nonparty 1’s heir, was a legitimate owner of the instant land, thereby partly citing the Plaintiff’

The lower court erred by misapprehending the legal doctrine on the presumption of provisional registration completed at the time of enforcement of the Registration of Real Estate Act and registration consistent with the substantive relationship, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal assigning this error

F. As long as the Plaintiff’s ownership of the instant land is not recognized, it does not change whether to accept the Plaintiff’s claim according to the validity of the registration of correction under the deceased Nonparty 2. Therefore, it is unnecessary to further examine the remainder of the grounds of appeal, such as the registration of correction is valid or the prescriptive acquisition of the instant

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)