[1] In a case where the actual cause of registration of ownership preservation under the former Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate was conducted after December 31, 1974, whether the presumption of registration of ownership preservation is recognized (negative)

[2] The extent to which another co-owner may seek implementation of the procedure for registration of cancellation against the co-owner who is the registered titleholder (=the co-ownership of the co-owner who is the registered titleholder except the co-ownership of the registered titleholder)

[1] Article 3 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Act No. 3094 of Dec. 31, 197), Article 186 of the Civil Act / [2] Articles 214 and 265 of the Civil Act

[1] Supreme Court Decision 91Da37157 delivered on January 17, 1992 (Gong1992, 865) Supreme Court Decision 92Da20286 delivered on December 11, 1992 (Gong1993Sang, 449) Supreme Court Decision 92Da53910 delivered on July 16, 1993 (Gong1993Ha, 2284) / [2] Supreme Court Decision 87Da961 delivered on February 23, 198 (Gong198, 580)

Plaintiff 1 and one other (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Abuse Paths

Daegu District Court Decision 2005Na11716 Decided May 10, 2006

The part of the lower judgment against Plaintiff 1 is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The appeal against Plaintiff 2 is dismissed. The costs of appeal between Plaintiff 2 and the Defendant are assessed against the Defendant.

1. In light of the purport of Article 3 of the former Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (Act No. 3094, invalidation, etc.; hereinafter “Special Measures Act”), registration of ownership preservation, which can be conducted under the former Act, shall be construed only to have been conducted on or before December 31, 1974, such as sale, gift, exchange, etc. which is the cause of the act. Thus, in a case where the cause of the act is deemed thereafter, if the cause of the act is recognized, it shall not be deemed to have the burden of presumption according to the above registration (see Supreme Court Decisions 91Da37157, Jan. 17, 1992; 92Da53910, Jul. 16, 1993, etc.).

On March 18, 1914, the land listed in the separate sheet Nos. 1 and 3 of the judgment below (hereinafter “the land of this case No. 1 and 3”) is the land under the name of the plaintiff 1 and the non-party 1, who is the defendant's mother, and the land listed in the separate sheet No. 2 (hereinafter “the land of this case No. 2”) is the land under the name of the non-party 2, who is the father of the plaintiff 2 on the same day, and the non-party 1 and the non-party 2 are pro-friendly land. The court below acknowledged that each registration of preservation of ownership of each of the land of this case was completed under the name of the defendant according to the special measures on August 21, 1981. The court below determined that each of the registration of preservation of ownership was legitimate because the defendant himself was a person who was distributed a miscarriage from his father in around 1981 and completed the registration of this case under the name of the defendant under the special measures.

In light of the above legal principles and records, the above judgment of the court below is correct, and there is no error of law in the misapprehension of legal principles as to the presumption power of registration under the Act on Special Measures.

In addition, the court below rejected all the defendant's defenses on the ground that there is insufficient evidence to acknowledge the defendant's assertion that the registration of preservation of ownership of each of the instant lands was effective registration that conforms to the substantive legal relationship since the defendant received each of the instant lands from the non-party 3. The court below rejected the defendant's defense on the ground that the defendant's assertion that the non-party occupied and managed each of the instant lands in a peaceful and open manner with the intention to own them for 10 years or 20 years or longer, and there is insufficient evidence to prove that the defendant occupied each of the instant lands exclusively and exclusively by exclusively controlling each of the instant lands. In light of the records, all of the above measures of the court below are proper, and there is no error of law by misunderstanding

2. However, it is difficult to accept ex officio the decision of the court below that accepted Plaintiff 1’s claim for the following reasons.

One co-owner of a real estate shall be entitled to seek the cancellation of registration in whole against a third party, as an act of preserving common property, if a preservation of ownership has been made for the invalidation of cause in the name of a third party with respect to the pertinent real estate. However, if the third party is one of the co-owners of the pertinent real estate, the preservation of ownership shall be in accordance with the substantive relationship with regard to his co-ownership. In such a case, one co-owner may seek the implementation of the procedure for cancellation of registration in whole as to all co-ownership except for co-ownership of the co-owner's share (see Supreme Court Decision 87Meu961, Feb. 23, 198, etc.).

Therefore, as acknowledged by the court below, the non-party 3, who was the owner of the land Nos. 1 and 3 of this case, died on September 21, 1986, and both the plaintiff 1 and the defendant 3's children, the defendant also has a co-ownership share equivalent to the inheritance shares in the land Nos. 1 and 3 of this case, unless there are special circumstances as the non-party 3's heir. Thus, the plaintiff 1 can seek the implementation of the procedure for the cancellation of registration of the preservation of ownership only with respect to the remaining co-ownership shares except

Nevertheless, the court below accepted the plaintiff 1's claim as to the whole land Nos. 1 and 3 including the defendant's co-ownership. Thus, the court below erred by misapprehending the legal principles as to the act of preserving jointly owned property, and such illegality has influenced the judgment (it is clearly premised on the plaintiff 1 and 3's claim was inherited from the non-party 1, who is the title holder of the circumstances, through the plaintiff 1 and the non-party 3, who is the father of the defendant, and therefore, the court below should first consider whether the non-party 3 is a legitimate heir of the non-party 1).

3. Therefore, the part of the lower judgment against Plaintiff 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal against Plaintiff 2 is dismissed as it is without merit. The costs of appeal between Plaintiff 2 and the Defendant are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)