(a) Methods of surveying for boundary restoration;

(b) The case reversing the judgment of the court below which acknowledged the violation of boundary without examining each survey method and basic point at the time of the registration of partition and the survey of boundary restoration;

A. The boundary restoration surveying conducted to restore a boundary on the cadastral map as a matter of whether a boundary is invaded or not shall be conducted in the same way as the surveying conducted at the time of registration. Thus, in conducting the boundary restoration surveying, the surveying method at the time of subdivision registration shall be followed, and the basis point at the time of subdivision registration shall be the basis at the time of the surveying. Therefore, even if there was no accuracy due to the development of surveying method or technology at the time of registration, it is more detailed that the boundary restoration surveying method at the time of registration should be based on the surveying method at the time of registration, and it cannot be conducted immediately by that method.

(b) The case reversing the judgment of the court below which acknowledged the violation of boundary without examining each survey method and basic point at the time of the registration of partition and the survey of boundary restoration;

Article 25(2) of the Cadastral Act and Article 45 of the Enforcement Decree of the same Act

A. Supreme Court Decision 90Da15266 delivered on July 23, 1991 (Gong1991, 2220) 92Da13295 delivered on January 14, 1994 (Gong1994Sang, 700) 92Da47359 delivered on February 8, 1994 (Gong194Sang, 996)

Plaintiff

Songpo Agricultural Cooperatives (Attorney Kim Byung-jin, Counsel for defendant-appellant)

Seoul Civil District Court Decision 92Na33489 delivered on October 15, 1993

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, on February 28, 1979, the land lot No. 5,161 square meters (hereinafter “Plaintiff-owned land”) was registered under the Plaintiff’s name, and the Defendant Union, as a result of construction and ownership of the building lot No. 258 square meters (hereinafter “Defendant-owned land”) adjacent to the Plaintiff’s land and the road lot No. 5, which were owned by the Plaintiff, was located within the boundary of the said land. The court below rejected the Defendant’s assertion on the ground that there was no concern that the land was located within the boundary of the Plaintiff-owned land and the land lot No. 5, and that there was no concern that the land was located within the boundary of the said land due to the fact that the land was located within the boundary of the Plaintiff-owned land and the land lot No. 5, on the premise that there was no concern that the land was located within the boundary of the Plaintiff-owned land and the land lot No. 15.

2. Where a parcel of land is registered with one parcel in the cadastral record under the Cadastral Act, the location, lot number, land category, land category, and boundary of the parcel shall be specified by this registration, unless there are other special circumstances, so the scope of ownership of the land shall be determined by the boundary on the cadastral record without regard to the actual boundary: Provided, That in the preparation of the cadastral map, where there are special circumstances, such as where the boundary on the cadastral map has been prepared differently from the true boundary due to technical errors, such as the error of selecting the basic points, etc., the boundary of the land shall be determined by the actual boundary (see, e.g., Supreme Court Decision 92Da5287, Apr. 13,

In addition, as in this case, the boundary restoration surveying conducted to restore the boundary on the cadastral map as a matter of whether the boundary has been invaded or not shall be done by the same method as at the time of registration (Article 45 of the Enforcement Decree of the Cadastral Act). In the above boundary restoration surveying, the first measurement method at the time of division registration shall be followed, and the second measurement shall be based on the base point at the time of division registration (see Supreme Court Decision 92Da13295 delivered on January 14, 1994; Supreme Court Decision 92Da47359 delivered on February 8, 1994). Therefore, even if the survey method or technology at the time of registration has not been developed and there was no accuracy, it is more detailed measurement method at the time of registration, and it shall not be done immediately by that method (see Supreme Court Decision 92Da47359 delivered on February 8, 1994).

However, according to the records, the land owned by the original and the defendant was divided into the above ( Address 3 omitted) before the division. The boundary line, which constitutes the boundary line of the original and the defendant's land, can be seen as being generated when the land was divided into the ( Address 6 omitted) (No. 3 omitted) which was divided into the above ( Address 1 omitted) before the division on September 17, 1974, and the land became the current land owned by the plaintiff. In light of the records, the survey method at the time of the formation of the above boundary line and the basic point at the time of the formation of the land, and the first instance court's judgment as cited by the court below acknowledged that the land was invaded by the plaintiff's land owned by the original and the building of this case, and there was no data to find that the survey results of the survey conducted by the non-party 1 and the non-party 1's non-party 1's surveying method and the basis point for the survey conducted by the non-party 1 in the first instance court.

In addition, although the result of the survey and appraisal by Nonparty 2 of the lower judgment is relatively close since it was evaluated by means of cadastral supplementary triangulation surveying, topographic control surveying, and plane table surveying, it cannot be readily concluded that it is appropriate to restore the above boundary without revealing the method of survey at the time of the formation of the boundary, and whether it was the basis of the survey, and thus, it cannot be said that the instant building was a suitable survey for restoring the said boundary cannot be used as evidence to acknowledge that it invadeds the Plaintiff’s land.

Meanwhile, according to the facts acknowledged by the court below, since the above ( Address 4 omitted) located on the right side of the above ( Address 5 omitted) was registered as the site around May 31, 1975, and the measurement error was made, it was about 5 degrees away from the boundary line forming the above ( Address 3 omitted), the cadastral map was prepared and registered, and the high-sea market, etc., which is the competent authority in the cadastral record, has taken measures to temporarily prohibit the boundary surveying because there is concern about the possibility of dispute, and according to the appraisal result of Nonparty 3 of the court below, it is difficult for the court below to reject the appraisal by the non-party 4 as a simple method of surveying the boundary line between the above land and the non-party 1, regardless of the fact that the boundary point confirmed in the field and the boundary point in the above (Road 5 omitted), and it is difficult to view that there is no possibility that the plaintiff 1 and the non-party 1, as the witness of this case did not own the land at the time of the plaintiff 1, as well-owned land.

Ultimately, the court below did not examine whether the boundary restoration survey was properly conducted by Nonparty 3 or Nonparty 1 of the court of first instance, or whether the boundary between the above ( Address 3 omitted) and the above ( Address 5 omitted) had an impact on the boundary of the original and Defendant’s land in a state where the boundary was set up and registered, and concluded that the land owned by the Plaintiff was invaded solely on the ground that the entry of No. 3 evidence, the result of Nonparty 1’s survey and appraisal by Nonparty 1, and the result of Nonparty 2’s survey and appraisal by Nonparty 2 of the court below is alternatively consistent with the above evidence No. 3 and the result of Nonparty 3’s survey and appraisal by Nonparty 1 of the court below, it erred by misapprehending the legal principles on the boundary restoration survey under Article 45 of the Enforcement Decree of the Cadastral Act, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Accordingly

3. Therefore, without examining the remaining grounds of appeal regarding the prescriptive acquisition, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)