(a) The capacity of parties to the natural village and the method of selecting representatives;

(b) Estimated history of the land cadastre;

(c) If the nominal trust property is disposed of, a copy of the ownership claim against the third party of the truster;

A. Under Article 48 of the Civil Procedure Act, an association or foundation which is not a juristic person may also be a party if there is a representative or manager. Thus, if natural village is a social organization that employs a decision-making institution and a representative who is an executive body with its own own purpose and carries out independent activities with its own purpose, it shall be deemed as a non-juristic person company. However, the appointment of a representative who is an executive body shall be governed by the regulations, and if there is no specific provision in the regulations, it shall be deemed that the appointment is made by the attendance of a majority of the representatives of households constituting such village and by the affirmative votes

(b)the entry in the land cadastre shall be presumed to be consistent with the truth unless there is any obvious reflective evidence otherwise;

C. In the case of a title trust of real estate, since ownership belongs to an external trustee, when a trustee disposes of the entrusted real estate to a third party, the truster may not claim the ownership of the third party on the ground that the title trust is the real estate, unless there is any ground such as invalidation or revocation of the disposal act.

A. Article 48 of the Civil Procedure Act. Article 187(c) of the Civil Procedure Act

A. Supreme Court Decision 78Da2364 delivered on January 15, 1980, 80Da156 delivered on March 25, 1980, 80Da2810 delivered on September 8, 1981, Supreme Court Decision 73Da782 delivered on October 10, 1973, and 80Da748 delivered on May 27, 1980, Supreme Court Decision 65Da312 delivered on May 18, 1965, and 80Da1819 delivered on July 28, 1981

Attorney Lee Jong-soo et al., Counsel for defendant-appellant

[Defendant-Appellant] Plaintiff 1 and 7 others, Counsel for defendant-appellant-appellant]

Msan District Court Decision 85Na60 delivered on November 8, 1985

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

The grounds of appeal are examined.

1. On the first ground for appeal:

An association or foundation which is not a juristic person may become a representative or a manager (Article 48 of the Civil Procedure Act), so if a natural father is a body of social organization that employs a decision-making body and an executive body for its own purpose with its own inherent purpose and carries out its independent activities, it shall be capable of being a party as a non-juristic person. However, the appointment of a representative who is an executive body shall be in accordance with the regulations, and if there is no specific provision in the regulations, it shall be deemed that the appointment of a representative is based on the attendance of a majority of the representatives of the households constituting the father and the consent

According to the records, it is difficult to find out that the Plaintiff’s movable village is one of three natural village belonging to the Changwon-si, Changwon-si, an administrative district, and is a social organization that independently performs its own activities for its own purpose. However, according to the evidence No. 1 (Minutes) of the Plaintiff’s representative, Nonparty 1, the representative of the Plaintiff’s village, was appointed as the representative of the Plaintiff’s health group, and according to the evidence No. 1 of Aug. 13, 1983, 100, the Plaintiff’s residents present the residents’ general meeting and the above Nonparty 1 was selected as the representative. Thus, there is no evidence suggesting whether the rules on the selection of the representative of the Plaintiff’s village or the total number of the representative of the Plaintiff’s resident tax, or if the above non-party 1 was selected as the representative of the Plaintiff’s household or if not, it is not clear that the Plaintiff’s representative was the representative of the Plaintiff’s meeting composed of more than the majority of the members of the Plaintiff’s household.

2. On the third ground for appeal

According to the reasoning of the judgment below, the court below determined to the purport that the plaintiff village was a co-ownership of three natural village, such as the plaintiff village and a monthly village, and Gu Do Do Do Do Do Do Do Gun, which had been formed as a Do Do nam-gun, Changwon-si (Si Gyeongwon-gun, Changwon-gun), since it had been established as a Do Do dong Do dong Do dong Do dong Do e-si, and the above three villages were operated as a Do Do e-si's fuel forest in the above forest, and the land was investigated under the Land Survey Order after the Do e-si Do e-si Do e-si e-si e-si, and it was not possible for the plaintiff village to receive the land assessment under the natural village's name, since the plaintiff village 2 (the father of the defendant), and the deceased village was registered as the above three-party 4 under the above third party's name in the forestry register at the time of the plaintiff village.

However, according to the evidence evidence Nos. 7 and 8 (Certified Copies of the Cabinet Forest Register) that was not rejected by the court below, it is clear that the forest was divided into 6 YY and 8 YY and 1940 May 2, 1940 in Changwon-si, and the forest was divided into 6 YY and 8 YY and the above ( Address omitted) forest was classified into 1917 May 10, 191, and it was the land for which the ownership transfer was transferred from 1940 to 3, such as Nonparty 2, Nonparty 3, and Nonparty 4.

Even if there is no clear counter-proof that the land cadastre is consistent with the truth, it is presumed that the court below erred in the determination of the value of evidence and the selection of evidence to the effect that the title trust was made to the above non-party 2 in the plaintiff village at the time of enforcement of the Land Investigation Order (the Land Investigation Order was enforced on August 13, 1912, and the Joseon Forest Investigation Order was enforced on May 1, 1918) by only one-time and vague statements of the witness of the city without any judgment as to the above evidence Nos. 7 and 8.

3. On the second ground for appeal:

In the case of a title trust of real estate, since the ownership is externally reverted to the trustee, when the trustee disposes of the entrusted real estate to a third party, the truster may not claim the ownership of the third party on the ground that the title trust is the real estate, unless there is any ground such as invalidation or cancellation of the disposal act.

원심판결 이유에 의하면, 원심은 그 거시의 증거를 종합하여 피고 2는 1982.10. 중순경 이 사건 임야가 그의 망부 명의로 등기되어 있음을 발견하고 그의 재산상속인인 원심피고 1(위 피고의 맏형)의 인감증명서를 받아와 같은 해 11.29 마산지방법원 창원등기소 접수 제13666호로서 상속을 원인으로 한 소유권이전등기를 마친 후 같은날 위 피고명의의 청구취지기재 소유권이전등기를 마친 사실을 인정한 다음, 그렇다면 피고 2는 외 임야의 3분의 1 공유지분이 그의 망부인 망 소외 2의 명의로 등기되어 있다 하여 이를 원심피고 1의 명의로 상속등기를 마친 후 임의로 그 자신명의로 청구취지기재의 소유권이전등기를 마쳤던 것이므로 이는 원인무효의 등기라 할 것이라고 판단하고 있다. 우선 원심의 판단취지가 피고 2가 피고 1의 의사에 반하여 그 명의의 소유권이전등기를 한 것이라는 취지인지 아니면 피고 1의 의사에 합치되기는 하지만 그 등기는 어떤 다른 사유가 있어 무효라는 취지인지가 분명하지는 아니하나(변론의 전 취지에 의하면, 원고의 주장은 후자의 경우로 보인다) 전자의 경우라면 피고 2가 피고 1로부터 인감증명서를 받아와 이전등기를 하였다는 원심인정 사실만으로는 바로 피고 1의 의사에 반하는 등기가 이루어진 것이라는 결론을 이끌어 낼 수 없는 것이고, 일건 기록에 의하여도 피고 2가 피고 1의 의사에 반하여 그 명의의 등기를 하였음을 인정할 수 있는 자료를 찾아 볼 수가 없으며(피고 2는 피고 1로부터 이건 임야를 증여받았다는 주장이다), 원심의 판단취지가 후자의 경우라면 이 사건 임야를 원고마을에서 위 소외 2에게 명의신탁한 사실이 인정된다 하더라도 신탁자인 원고마을이 수탁자로부터 소유권을 취득한 제3자인 피고 2 명의의 등기에 대하여 주장할 수 있는 무효 또는 취소의 사유가 없는 이상 그 등기를 무효라고는 주장 못할 것이다.

In light of the fact that the court below held that the registration of title transfer by Defendant 2 is null and void, it constitutes a case where the legal principles of title trust as seen above are erroneous or the reasons therefor are not attached to the judgment. Therefore, the appeal pointing this out is justified.

4. Therefore, the judgment of the court below is reversed on the ground that there is a serious violation of law which is deemed to be considerably contrary to justice and equity, and the case is remanded to the Mapo District Court Panel Division which is the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)