206 Gaz. 12606 Damage

March 8, 2007

March 22, 2007

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The plaintiff shall pay to the defendant 35, 941, 200 won, 23, 960, 800 won each of them, and 20% interest per annum from the day following the delivery of the written application for modification of the purport and cause of this case to the day of complete payment.

1. Basic facts

A. The plaintiff clan was established in order to protect the graves of its descendants and promote friendship among their members, and on May 31, 1987, enacted the clan rules.

B. Nonparty ** The registration of ownership transfer in the name of the decedent was made at No. 4343 on the same day after the registration of ownership transfer was made under the title of the deceased at No. 4343 on May 28, 1930 (fire extinguishing, five years) and No. 4342 on the Seo-gu Daejeon, Seo-gu, Daejeon (hereinafter “the instant land”).

C. The decedent died on June 15, 1958, and % of the children of Australia who are family successors would be the deceased on June 15, 1958.

The sole inheritance of the land, and % also died on November 9, 1995, and the Defendants jointly inherited the instant land. The Defendants completed the registration of ownership transfer on the ground of inheritance on August 31, 2005, No. 99779, and June 15, 1958, with respect to the instant land, which was owned by the deceased under the name of ownership on August 31, 2005.

D. After that, on September 28, 2005, on October 6, 2005, the Korea Land Corporation acquired each inheritance share of the instant land from the Defendants through consultation, and paid to the Defendants the amount of KRW 35,941,200, and KRW 23,960,80, respectively, to the remaining Defendants.

E. Meanwhile, both the decedents and the Defendants are not members of the Plaintiff clan, but the clan members of the Chungcheong clan.

[Ground of Recognition] Unstrifed Facts, Gap 1, 3 evidence, Eul 2 evidence 74, Korea in this Court

The results of fact-finding conducted by the Head of Daejeon District Headquarters for Land Corporation and the purport of the entire pleadings.

2. The parties' assertion

The plaintiff originally owned the land of this case, which was held by the plaintiff clan, and was held in title by the defendant's father for convenience, and the plaintiff terminated the title trust upon the service of the complaint of this case, the defendants shall refund the purchase price received from the Korea Land Corporation for each inheritance shares among the land of this case, but they embezzled the money without returning it, and therefore, the plaintiff is obligated to pay the amount equivalent to the above purchase price as compensation for damages caused by the non-legal act to the plaintiff.

As to this, the Defendants asserted that the instant land was not nominal trust from the Plaintiff, but was owned by Nonparty ** by the decedent, the father of the Defendant, who was the father of the Defendant, * the land owned by the decedent from the deceased, and that the lawful owner of the instant land was the Defendants, and thus, the Plaintiff cannot respond to the Plaintiff’s request.

3. Determination

A. Requirements for recognizing the title trust of clan properties

In a case where the issue of title trust on a parcel of land is disputed between a registered titleholder, such as a clan and a clan member, if it is recognized that the land was a title trust in the future of the registered titleholder, the existence of a clan, which has an organic organization to the extent that the land was made at the time when the registration was made in the name of the registered titleholder with respect to the land, shall be proved, and the process or content of the land was directly proved, the relationship between the registered titleholder and the clan, if there are several registered titleholders, the reasons why the registration was made in the future, the status of the establishment of a clan centered on the Si, the size and management status of the grave, the receipt and disbursement relation of the proceeds of the land, the payment relation of taxes and public charges, and the relation with the possession of the registration certificate, etc. (see Supreme Court Decision 9Da1397 delivered on July 6, 200).

In particular, since the title trust of the clan property to a person who is not a clan member is very unusual, in order to recognize that the clan property was a title trust to a person who is not a clan member, the reason for such special group should be recognized in addition to the above circumstances.

B. Determination of the instant case

(1) There is no evidence to support directly the fact that the Plaintiff’s clan exists as an entity with an organic organization around 1930, when a registration has been made in the name of the inheritee back to the instant case and that the land was owned by the Plaintiff, and that the process or content of the land was directly recognized.

(2) However, the plaintiff asserts that the land of this case is owned by the plaintiff on the plaintiff's property list, entries in the above land register, payment relation of aggregate land tax, management relation of the land of this case, etc., and comprehensively takes account of the whole purport of the arguments in part of Gap 1, 4, 8, 9, Eul 2-21, 36, witness's 21 and 36, witness's 1951 (short-term 4284). 17 December 17, 1951, 483, 560, and 9. 9. 19. 9. 9. 1. 1. 1. 1. 1. 1. 3. 1. 1. 1. 1. 1. 1. 1. 1. 2. 1. 1, the land of this case on the land of this case and 9. 1. 1. 1. 1, 197 . 2. 1. 1. 1. 3 . . . . . 3. . . . . . . .

(3) However, each of the above evidence consists of Gap 2, 4, Gap 6-3, Eul 1-4 ( = 2-29, Eul 2-53), Eul 2-9, 11, 12, 22, 23, 29, 35, 47, 58, 70, 74, and 83 as a whole.

The following circumstances, namely, ① Article 6 of the former Farmland Reform Act (amended by Act No. 31, Dec. 22, 1994; repealed by Act No. 4817, Dec. 22, 1994); Article 11 and Article 12 of the Enforcement Rule of the same Act (amended by Ordinance No. 18, Dec. 28, 1950; repealed by Ordinance No. 1217, Dec. 29, 1995; see, e.g., Supreme Court en banc Decision 97Da197, Jun. 9, 207) provided that a person who wishes to obtain the above land was unable to obtain the recognition of the land, by submitting to the administrative agency an application for permission of the above land, grave location, etc., and filed an application for permission, and thus, it cannot be seen that the land is actually owned or registered in the above clan register, and thus, it cannot be seen that the land was actually owned by the said person.

② While the list of the Plaintiff’s properties appears to have been prepared by himself on the basis of the statement, etc. made by the lower court and the Defendant’s clan, even if the said list was made on the date of confirmation at the notary and joint law office, it is merely merely a confirmation of the preparation of the list itself, and it does not mean that the instant land is confirmed by the substantive legal relationship, which is owned by the Plaintiff.

③ In addition, the Plaintiff’s land located in the Daejeon-gu Daejeon-dong 705 - 1, 495, 501, 487, 491, and 492, as indicated in the Plaintiff’s property list, is the name of the decedent who is not the member of the Plaintiff’s clan, on the other hand, the land of this case is registered in the name of the decedent who is not the member of the Plaintiff’s clan. The Plaintiff’s clan purchased the land of this case from the decedent and is presumed to have entrusted the name of the decedent without completing the registration of ownership transfer, but there is no evidence to acknowledge it.

④ On the other hand, the Defendants filed a lawsuit for the registration of ownership transfer against the Defendants as of September 26, 2002, asserting that the land of this case was owned by Nonparty 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 2, the non-party 2, the non-party 3, the non-party 1, the non-party 4, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 3, the non-party 2, the non-party 2, the non-party 3, the defendant.

⑤ While the Plaintiff argued that WW clan members have long managed and cultivated the instant land for a long time, each of the testimonys made by the Plaintiff’s members is the statement of the Plaintiff’s member. In the appellate trial of the lawsuit brought by the Nonparty clan ( Daejeon District Court 2004Na8355) and Defendant 2 and 3, when being investigated as a criminal complaint case brought by Defendant 2 and 3 against WW clan, the Plaintiff argued that the Plaintiff’s testimony was that “The other members of the instant clan managed the instant land for a period of 40 years,” and that such fact was recognized by the court, so it is difficult to readily believe the aforementioned testimony.

(6) On the other hand, the defendants knew that the land of this case was registered in the name of the deceased decedent. On October 1999, the non-party clan was aware that the ownership of the land of this case was owned by the defendants, and it was confirmed that the land of this case was owned by the defendants. On October 7, 1999 because the name of the deceased was recorded in the registry, the registration of correction was made in the name of the deceased, whose father was his father at a similar time, and thereafter, the defendants discovered that the land of this case was registered in the name of the deceased, his father at a similar time, and thereafter, the land of this case was registered in the name of the deceased.

The plaintiff clan paid the aggregate land tax. The plaintiff clan did not raise any objection against the defendants and the defendant's family members' above intention to exercise their rights, and filed the lawsuit of this case after the non-party clan lost the non-party clan (In this regard, the plaintiff argued that all officers of the plaintiff clan were unable to engage in the activities of the clan as two clans since 2000, but as seen earlier, + + & & & & & & & &, etc. were performed as officers of the non-party clan even after 200, and therefore the plaintiff's above head is difficult to believe that the plaintiff's head was the non-party's officer).

In light of the above facts, it is difficult to view that the Plaintiff clan held title trust to the deceased deceased decedent on 1930, and there is no other evidence to acknowledge it otherwise, solely on the following grounds: (a) the record content of the above facts recognized; (b) the payment of comprehensive land tax; and (c) the payment of compensation for losses to the Plaintiff clan members.

4. Conclusion

Therefore, the plaintiff's claim against the defendants of this case is dismissed as it is without merit. It is so decided as per Disposition by the State.

Judges Park Jung-hwa

Judges Kim Jong-ran

Judges Oral Assistance