등기명의인표시의 변경·경정등기에 대한 말소등기청구시 청구권원과 증명책임 : 판례상의 ‘등기명의인에 해당하는 자’ 개념에 관한 고찰-대상판결 : 대법원 2021. 5. 7. 선고 2020다299214 판결-

Abstract

The Supreme Court decision is about a case in which the plaintiff, the titleholder of the first registration of change of the indication for real estate owned by the existing registered titleholder, seeks to cancel the registration against the defendant who has subsequently registered the second registration of change of the indication on the grounds that it is an illegal registration that harms identity. The registered titleholder refers to the current title holder in the registration of rights, that is, the right titleholder in the registration, and the registration of change(or correction) of the indication of the registered titleholder is performed in order to match the indications in the register with the reality within the extent that the identity of the registered titleholder is maintained. As such, the registration of change(or correction) of the indication of the registered titleholder is a procedure for changing(correcting) the indication with respect to the same registered titleholder, so the identity of the person must be maintained before and after the change(or correction) of the indication of the registered titleholder. However, if the registration of change(or correction) of the indication of the registered titleholder is carried out in a way that impairs the identity of the registered titleholder, and the indication in the real estate register does not represent the actual ownership relation, in this case, according to Korean precedent, the true owner may request the cancellation of the registration of change(or correction) of the indication, which is an obstacle to the ownership, against the owner on the indication on the basis of the legitimate exercise of the right to claim exclusion of infringement which is the content of the ownership. In this paper, noting the difference between the judgment of the appellate court and the judgment of the Supreme Court, in seeking the cancellation of registration of change(or correction) of the indication of a registered titleholder, which is an illegal registration that deviated from the identity, I looked into who has the burden of proof regarding the fact that he or she is the true owner, and in this regard, focused on how the power of presumption in registration can work.