The case holding that there was an error in the misapprehension of the burden of proof on ownership by recognizing that the change of title in the forest land register under the Act on Special Measures for the Registration, etc. of Transfer of Forest Ownership and that the registration of preservation of ownership has been completed for the land

The case holding that there was an error in the misapprehension of the burden of proof on ownership by recognizing that the change of title in the forest land register under the Act on Special Measures for the Registration, etc. of Transfer of Forest Ownership has been made with respect to the land whose land category has already been changed to site

Article 186 of the Civil Act, Article 261 of the Civil Procedure Act, Article 1 of the Act on Special Measures for the Transfer of Forest Ownership, etc.

[Defendant-Appellee] Plaintiff 1 et al.

Defendant 1 and 26 others

Seoul High Court Decision 87Na1426 delivered on December 27, 198

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

The grounds of appeal are examined.

(1) On July 7, 1970, the judgment of the court below stated that the above land before the division of the real estate was under the name of the plaintiff 1 at the time of the above transfer of the land, and that the plaintiff inherited the land through the non-party 2. The non-party 3 changed the ownership of the land in accordance with the procedure stipulated in the Act on Special Measures for the Registration of Forest Ownership, etc. for the 105 square meters before the division of the land and the registration of ownership was completed on July 11, 197, with a copy of the forestry register attached to the non-party 4 in his name (the non-party 4, who was the defendant of the first instance court, did not own the above land under the above name of the non-party 1 at the time of the above transfer of the land (the non-party 2, who was the non-party 4's address omitted) and that the non-party 2 and the non-party 6's ownership registration of the above land had not been completed in accordance with the procedure stipulated in the above Act on the non-party 17.

Ultimately, the court below presumed that the registration of preservation of ownership of Nonparty 3 as to the above ( Address 1 omitted) land was made under the Act on Special Measures for the Registration, etc. of Forest Ownership, and therefore, the registration of preservation of ownership of Nonparty 4 as to the land of this case was presumed to be owned by the same person pursuant to the provisions of the same Act, and that the registration of preservation of ownership of Nonparty 1 and 6 as to the land of this case was presumed to have been transferred by the previous owner in accordance with the special provisions

(2) There is no evidence to deem that the title of ownership in the forest register was changed according to the Act on Special Measures for the Registration, etc. of Forest Ownership, which was enforced at the time of the above non-party 3 with respect to the land Nos. 8-2 (Forest Register) and Nos. 10 (Closure 1 omitted) of the above ( Address 3 omitted) land was divided into non-party 1 and restored to the forest register Nos. 7-41, Dec. 31, 1966 for the forest land register Nos. 146-1 through 6, 1969 as the owner was divided into non-party 1 and the land category was changed to the land category and lot No. 146-2 of the same day as of Oct. 31, 1969.

Furthermore, the lower court, on July 7, 1970, changed the title in the forest land register under the above non-party 3’s name under the above special provisions, but this land was not subject to the application of the Act on Special Measures for the Registration, etc. of Transfer of Forest Ownership as the land category has already changed to a site on October 31, 1969.

The court below held that the above non-party 3 was illegal by recognizing that the registration of preservation of ownership has been made under the above special provisions without any evidence, thereby recognizing the presumption of registration made under the above special provisions.

(2) According to the evidence No. 7 and No. 8-2 cited by the court below concerning the above ( Address No. 2 omitted) forest No. 4 and No. 1289 square meters of forest No. 4 and No. 6 of the annexed table No. 2 through No. 4, as the original adjudication was conducted with respect to the above ( Address No. 2 omitted) forest No. 7 and No. 8 under the above special protocol, it is recognized that the above non-party No. 4 changed the ownership of forest No. 3,4,5,6 forest No. 4 in accordance with the above special protocol, and there are no data to recognize that the remaining land No. 3,5,6 list No. 4 had already changed the ownership of the land on Oct. 31, 1969, and there was no change in the ownership of the land under the above special protocol No. 4 under the above special protocol, and thus, the ownership preservation registration of non-party No. 4 was completed under the above special title No. 5 of the forest No. 5.

Thus, the land in this case is presumed to be owned by the plaintiff, who is the heir of the non-party 1 who is the deceased non-party 3 and the non-party 4 in this case. Therefore, the burden of proving that the registration of preservation of ownership in both names is valid, consistent with the substantive relations, shall be deemed to have been destroyed. Therefore, even though the defendants had any evidence, the court below acknowledged that the above registration of preservation of ownership was completed under the Act on Special Measures for the Registration, etc. of Transfer of Forest Ownership without any evidence, and thereby, it erred in the plaintiff with the burden of proving that the registration of preservation was not lawful under the aforesaid Act

Ultimately, the court below erred by recognizing facts without any evidence, and this constitutes Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, and therefore, the court below reversed the judgment of the court below and remanded the case to the Seoul High Court for a trial and determination as to whether the above registration of preservation of ownership conforms to the substantive relations. It is so decided as per Disposition by

Justices Park Yong-dong (Presiding Justice)