Plaintiff (Law Firm Chuncheon, Attorney Kim Sung-hwan, Counsel for the plaintiff-appellant)

Defendant 1 and five others (Attorney Cho Jong-soo, Counsel for the defendant-appellant)

November 5, 2015

Suwon District Court Decision 2012Da37568 Decided January 8, 2015

1. Of the judgment of the court of first instance, with respect to correcting the boundary lines of the Gyeyang-gu, Yangyang-si ( Address 3 omitted), ( Address 4 omitted), ( Address 5 omitted), and ( Address 6 omitted), with respect to correcting the boundary lines of the roads, the part on the claim for each acceptance against Defendant 1, Defendant 3, Defendant 4, Defendant 5, and Defendant 6 for correcting the boundary lines of the Goyang-gu, Yangyang-si ( Address 1 omitted) shall be revoked, and the plaintiff's claim corresponding to that portion shall be dismissed.

2. The plaintiff's remaining appeal against the defendants is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendants shall be revoked in order of 1 to the plaintiff 2, 2, 1, 2, 3, 2, 3, 2, 4, 1, 24, 2, 2, and 3, 2, 1, 2, 3, 4, 2, and 4, 2, 1, 2, 2, 4, 1, 2, 2, 3, 2, 1, 2, 3, 2, 4, 2, 1, 2, 2, 2, 3, 2, 2, 3, 1, 2, 4, 2, 2, 3, 2, 14, 25, 3, 2, 3, 3, 1, 24, 25, 3, 2, 3, 1, 24, 3, 1, 24, 2, 3, 3, 1, 24, 2, 2, 3, 3, 4, 1.

1. Basic facts

A. Nonparty 6 divided a part of the area of 4436 square meters prior to Gyeyang-gu, Gyeyang-gu ( Address 7 omitted) into 660 square meters prior to the same Dong ( Address 1 omitted) and 660 square meters prior to the ( Address 7 omitted), in order to sell to Nonparty 1 and Nonparty 2, on February 10, 2003, in order to sell part of the area of 4436 square meters prior to Seoyang-gu ( Address 7 omitted).

B. On March 21, 2003, Nonparty 1 completed the registration of transfer on the basis of sale on January 24, 2003 with respect to the area of 660 square meters prior to Gyeyang-gu ( Address 1 omitted) Seoyang-gu (hereinafter “Yyang-gu”). Nonparty 2 completed the registration of transfer on the ground of sale on July 28, 2003 with respect to the area of 660 square meters prior to the same Dong ( Address 3 omitted) on June 22, 2003.

C. In order to sell part of the area of 660 square meters, which was 660 square meters prior to Soyang-si ( Address 1 omitted), the non-party 1 divided the area of 90 square meters prior to the 285 square meters prior to the same Dong ( Address 4 omitted) in the area of 660 square meters prior to the 285 square meters prior to the 285 square meters prior to the Dong ( Address 4 omitted) in Gyeyang-gu ( Address 1 and 4 omitted) in Gyeyang-gu, Yangyang-si ( Address 1 omitted) into a site, and the land category was changed into a road ( Address 2 omitted). The land category was changed into a site; the above ( Address 1 omitted after the division and land category change; the above ( Address 4 omitted); the land of 2 omitted; and the above ( Address 2 omitted); and (3) the land of 1 road.

D. Defendant 2 completed the registration of ownership transfer based on sale on January 5, 2004 with respect to the entire site on February 9, 2004 and the 1/2 portion of the road on January 2, 2004.

E. On June 3, 2010, the Plaintiff purchased all the first site and 1/2 shares of the first road and completed the registration of ownership transfer on the said land on June 14, 2010, in the case of a compulsory auction, etc. by official auction, etc. (Seoul District Court Decision 2009Hu6062).

F. On March 30, 2004, Nonparty 2 divided the area of 90 square meters, prior to the same ( Address 5 omitted) Dong ( Address 6 omitted) as 285 square meters prior to the said ( Address 6 omitted) into the site on April 6, 2007, the land category of 285 square meters prior to the said ( Address 8 omitted) was changed to the site; hereinafter referred to as “third site”; on January 20, 2012, the land category was changed to the site on January 20, 2012 prior to the said ( Address 3 omitted); and on March 30, 2004, the previous 90 square meters was changed to the land category on March 30, 204.

G. On June 30, 201, Nonparty 3 completed the registration of ownership transfer on May 26, 201 with respect to shares No. 1/2 and No. 3 of the road No. 2, and on May 26, 2011, Nonparty 4 completed the registration of ownership transfer based on sale on September 14, 2012 with respect to each of the above lands on July 8, 2012. Nonparty 4 died on October 4, 2013. Nonparty 4 was his/her heir, his/her spouse, Defendant 3, Defendant 4, Defendant 5, and Defendant 6.

H. Defendant 1 completed the registration of ownership transfer on November 23, 201, with respect to all sites and 1/2 shares among roads No. 4 and 2 on January 3, 201.

I. On August 2010, the Plaintiff and Defendant 2 conducted a boundary restoration survey to restore the boundary of the cadastral map on the land and the roads Nos. 1, 2, and 2 to the actual ground surface. From among the buildings owned by the Plaintiff on the land No. 1 site, the Plaintiff and Defendant 2 conducted a boundary restoration survey to the actual ground surface. It was surveyed that 1.75 square meters of the buildings

(h) Space data, such as cadastral map, and characteristic data related to land are computerized and managed through the Korea Land Information System (KLIS, Korea LandI), and the boundaries between the sites 1 to 4 and 1, and 2 are as listed in the following table on the basis of cadastral map registered in the above system:

Site No. 3, 4, 6, 20, 3-2 site No. 1, 3, 20, 22, 18, 19, 18, 22, 25, 14, 16, 18-4 site No. 25, 10, 11, 12, 13, 14, 25 site No. 20, 6, 7, 22, 20, 22, 22, 22, 10, 25, 222, 10, 25, 222

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, and 6 (including each number), and the fact inquiry results of the court of the first instance on August 23, 2013 to the Gyeyang-gu Office of the court of the first instance, the purport of the whole pleadings

2. Judgment ex officio as to the legitimacy of the main defense and the instant claim

A. Defendant 3, Defendant 4, Defendant 5, and Defendant 6 are not the owner of adjacent land to be changed to the cadastral map correction as to the land owned by the Plaintiff, and there is no interest in the lawsuit against the said Defendants. In addition, we examine the aforementioned defense and the legitimacy of the instant claim ex officio.

B. First, regarding the correction of the boundaries of Nos. 2, 3, 4 and 2 among the instant lawsuit, we examine the part on which the Defendants seek consent from the Defendants.

The Plaintiff filed the instant claim based on Article 84(1) and (3) of the Spatial Data Establishment, Management, etc. Act. Article 84(1) of the same Act provides that “If a landowner finds that there is any error in the registered matters in the cadastral record, he/she may apply for the correction thereof to the competent cadastral authority,” and Article 84(3) of the same Act provides that “in cases where the boundary of an adjacent land is changed due to a correction under paragraph (1), he/she shall submit a written consent from the neighboring land owner or an authentic copy of the written judgment against it.”

According to the above law, the “owner of the relevant land” who has an error in the registered matters in the cadastral record can only apply for the correction of the registered matters in the cadastral record with respect to the relevant land, but may not seek the correction of the registered matters in the cadastral record with respect to the relevant adjacent land. Nevertheless, with respect to the correction of the boundary between the two, three, four, and two roads owned by the Defendants, the Plaintiff filed a claim with the Defendants for the declaration of consent. However, even if the Defendants expressed their intent to consent to the said land, the Plaintiff cannot file an application for correction, and thus, the claim

C. Next, regarding the correction of the boundary of No. 1 among the instant lawsuit, we examine the part on which Defendant 1, Defendant 3, Defendant 4, Defendant 5, and Defendant 6 seek consent.

According to the facts acknowledged above, the first site is adjacent to the second site and the road, and due to the correction of the boundary of the first site, the boundary of the second site and the first road is changed. As to the correction of the boundary of the first site, it is unlawful as there is no benefit to seek a declaration of consent from Defendant 1, Defendant 3, Defendant 4, Defendant 5, and Defendant 6, who is the owner of the third site and the second road, whose land boundary is not changed due to the said correction.

3. Judgment on the merits

A. The plaintiff's assertion

At the time of dividing the instant land, the intent of the parties had been intended to divide the same site area from Nos. 1 to 4, but the cadastral map was erroneously prepared due to technical errors, and there exists a difference between the area recorded in the certified copy and land cadastre of No. 1 to 4 sites and roads No. 1 and 2 (hereinafter “each of the instant lands”) and the area registered in the cadastral map. The boundary of the instant land is recognized based on the cadastral map, and when the boundary of No. 1 site and No. 1 road is not corrected, the Plaintiff’s ownership is infringed upon. As such, in relation to the instant land No. 1 site, the Defendants are obliged to express their consent to correct each of the boundary lines to be consistent with the area registered in the certified copy of the register and the

(b) Related statutes;

/ The Act on the Establishment, Management, etc. of Spatial Data

Article 26 (Method of Determining Areas, etc. Following Land Alteration)

(2) Where any error occurs in determining the area due to registration conversion or partition, matters necessary for the allowable limit and method of rectification, etc. of such error shall be prescribed by Presidential Decree.

Article 84 (Revision of Registered Matters)

(1) Where a landowner finds any error in the registered matters in the cadastral record, he/she may request the competent cadastral authority to correct it.

(2) When the competent cadastral authority finds any error in the registered matters in the cadastral record, it may ex officio investigate and survey and correct it, as prescribed by Presidential Decree.

(3) Where the boundary of an adjacent land is changed due to a revision made under paragraph (1), any of the following documents shall be submitted to the competent cadastral authority:

1. Written consent of the owner of adjacent land;

2. The original copy of a final and conclusive judgment capable of setting up against it where the owner of adjacent land does not consent.

m. Enforcement Decree of the Act on the Establishment, Management, etc. of Spatial Data

Article 19 (Allowable Scope of Area Error following Registration Conversion or Division, and Distribution, etc.)

(1) Where any error occurs in determining any area for registration conversion or partition under Article 26 (2) of the Act, the allowable scope of such error and methods of dealing with such error shall be as follows:

1. In the case of registration conversion:

(a) The allowable scope of the area in the forestry cadastral book and the area to be registered conversion shall be determined by the following formula. In this case, when calculating the allowable scope of the error, the scale division in the area where the scale is 1/3,000 shall be 6,000:

A person shall be appointed.

(A) An error permitted area, M in the forestry map, the scale division of the forestry map, and F in the area to be registered conversion)

2. In the case of land partitioning:

(a) The allowable scope of error between the total area of each parcel after division and that of the area before division shall be determined by the formula under subparagraph 1 (a). In such cases, A shall be the allowable area of error, M shall be the area that is permitted for error, M shall be the scale division and F shall be the original area, and the scale division of an area the scale of which is 1/3,000 shall be 6

(b) Where the difference in the area before and after the division is made within the allowable scope under the formula under item (a), the error shall be divided according to the area of each parcel after the division, and where the allowable scope is exceeded, the area or boundary on the cadastral record shall be corrected;

(c)The calculated area in which the difference of the area before and after division is allocated shall be calculated to the necessary place in accordance with the following formula, and the determined area shall be determined by successively raising from what the number next to the last place of the calculated area to be identical with the original area is larger than that which is to be calculated, but if the number next to the last place to be computed is different, it shall be determined by raising the larger of the calculated area:

A person shall be appointed.

(r means the calculated area of each parcel, F means the original area, A means the total of the measured area or the total of the corrected area, and A means the measured area or the corrected area of each parcel)

C. Facts of recognition

(1) In order for a landowner to divide land, the Korea Land Information Corporation or a cadastral survey company has applied for a subdivision survey of the relevant parcel, and conducted a survey under the presence of landowners and interested persons, and submit the result of the survey to the competent cadastral authority for a performance test. Upon completion of a performance test, the competent cadastral authority shall issue a cadastral survey report to the landowner, and the landowner shall also apply to the competent cadastral authority for

(2) At the time of dividing each of the instant lands, the owner also applied for a surveying by designating the area, and the cadastral authority obtained a result of cadastral surveying from the Geumcheon-gu Office, which is the competent cadastral authority around September 22, 2003, and applied for subdivision with it. Accordingly, the certified copy of the register and land cadastre of each of the instant lands were adjusted to the designated area as above (the same is as indicated below).

(3) At the time when the survey result map and cadastral survey result map for each of the instant lands were prepared, the area was calculated by using machinery, etc. on the basis of line, but after the cadastral map was electronically registered on the Korean Land Information System, the area automatically calculated by using a plucker, etc. as a coordinate, and the area of each of the instant lands calculated accordingly is as listed below.

(4) When calculating the allowable error of each of the instant lands in accordance with the method prescribed in Article 26(2) of the Spatial Data Establishment and Management Act and Article 19(1)2 of the Enforcement Decree of the same Act, the error is as listed below.

The actual error of statutory error in the area in the cadastral map registered with the Korea Land Information System on the copy of the register and land cadastre of the land in the main body: 【1 site 285 【 285 【 285 【 69 【 285 【 285 【 3 site No. 13.69 【 13.6 【 13.6 11 【 285 278 【 905 【 13.6 13.6 【 905 【 9093 【 1, 3201, 3199

[Ground of recognition] Fact-finding without dispute, the result of the fact-finding conducted on September 4, 2013 by the court of first instance on the Gyeyang-gu, the result of the fact-finding conducted on August 19, 2015 by the court of second instance, the fact-finding conducted on August 19, 2015 by non-party 5's

D. Determination

In other words, through the following circumstances, known through the facts recognized above, relevant laws, and regulations:

In full view of the fact that the difference between the designated area and the cadastral map prepared by the above survey was generated as the owner of each land in the course of requesting a partition survey, and the automatically calculated area was computerized, but the difference is within the permissible limit of error as prescribed by the Act on the Construction and Management of Spatial Data and its Enforcement Decree, and the Act on the Construction and Management of Spatial Data and its Enforcement Decree, and the purport of determining the permissible limit of error is that the area inevitably may vary depending on the technical limit of each survey method applied at the time of the survey or the variables such as the scale of the cadastral map, etc. in the cadastral map, and that it is difficult to regard it as an error within the permissible limit of error, in view of the fact that it is difficult to view that there was an error of partition or a technical error in the process of reflecting the result of subdivision survey in the cadastral map, etc., the Plaintiff’s claim cannot be seen as an “case where there was a error in the registered matters” as prescribed by Article 84(1) of the Spatial Data Construction and Management Act with respect to the boundary of the

4. Conclusion

As to the correction of the boundary line of Nos. 2, 3, 4 and 2 to the defendants in the lawsuit of this case, the part of the claim for correction of the boundary line of No. 1, 3, 4, 5, and 6 as to the correction of the boundary line of No. 1, and the part of the claim for correction of the boundary line of No. 2, 3, 4, and 6 is unlawful, and the remainder of the claim is dismissed as it is without merit. As to the correction of the boundary line of No. 2, 3, 4, and 2 to the defendants in the judgment of the court of first instance, the part of the claim for correction of the boundary line of No. 1, as to the correction of the boundary line of No. 2, 3, 4, 5, and 6 is unfair, and the plaintiff's claim corresponding to the cancellation part is dismissed as it is without merit. The remaining appeal of the plaintiff is dismissed as

[Attachment of Survey Appraisal]

Judge Lee Young-young (Presiding Judge)