[소유권이전등기말소][공1992.11.1.(931),2843]
A. Where a clan property is held in title trust to many persons, the relationship of ownership between the trusters (=share relationship)
B. Whether it is deemed that a person, among the trustees of the clans, occupied the farmland and possessed it with the intention to own a portion exceeding the entrusted share
C. When the interruption of prescription by a lawsuit takes effect where a clan confirmed a lawsuit filed by a person who is not a legitimate representative (=the time of filing a lawsuit)
A. Where a clan property is nominally held by many persons, a formal sharing relationship is established between the trustees.
B. Even if one of the trustees of the clans has occupied the clans, it shall not be deemed that the clans occupied the clans for the clans, unless there are other circumstances, and it shall not be deemed that the clans occupied the clans as the intention to own the portion exceeding the entrusted clans.
C. If a clan confirmed a lawsuit filed by a person who is not a legitimate representative, the lawsuit shall be retroactively effective, and even if there is a defect in the qualification of the representative at the time of the filing of the family clan, so long as the lawsuit is deemed retroactively effective without being dismissed, it shall not be deemed that the interruption of prescription is also effective, and it shall not be deemed that prescription is interrupted upon ratification of the procedural acts.
a.B. Article 186 of the Civil Code / [title trust] Article 262 of the Civil Code b. Articles 197 and 245(c) of the Civil Code, Article 247(2)(Article 168) of the Civil Code, Article 56 of the Civil Procedure Act
A. Supreme Court Decision 69Da743 delivered on July 22, 1969 (Gong17 ② 362) 81Da15341 delivered on November 23, 1982 (Gong1983,189) (Gong1983,2375) (Gong1992,2375) B. Supreme Court Decision 85Da164 delivered on November 10, 1987 (Gong198,766) 91Da27655 delivered on December 10, 1991 (Gong192,486)
Jeonju District Court Decision 201Na1448 delivered on August 1, 201
Defendant-Appellee et al., Counsel for the defendant-appellant
Seoul High Court Decision 90Na39585 delivered on March 27, 1992
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
On the first ground for appeal
Examining the reasoning of the judgment below in light of the records, we affirm the reasoning of the court below which recognized the title trust of the land of this case (real estate No. 1 in the annexed list of the judgment below) and it cannot be said that there was no error of law by failing to exhaust all necessary deliberations or by violating the rules of evidence, and there was no omission of evidence judgment affecting the judgment.
There is no reason to discuss the issues of the exclusive authority of the fact-finding court.
On the second ground for appeal
If a clan property has become a title trust to many persons as in this case, it is the theory that the co-ownership relationship between the trusters should be established.
However, according to the facts acknowledged by the court below, the land of this case is the clan owned by the plaintiff's clan, and the plaintiff's title trust was held by the plaintiff's clan to 67, such as the deceased non-party 1. After the non-party 1 died on September 18, 1950, the non-party 2, who is his heir, applied for the permission of the plaintiff's clan's standing as the member of the plaintiff's clan. Thus, even if the non-party 1 or the non-party 2, who is the trustee, possessed the above farmland of the plaintiff's clan, unless there are other circumstances, it shall be deemed that he occupied it as the member of the clan for the plaintiff's clan, and it shall not be deemed that the non-party 1 or non-party 2 possessed it as the member of the plaintiff's clan, and it shall not be deemed that the court below erred by the reversal of the presumption of autonomous possession by the above non-party 1 or the non-party 2 at the time of the plaintiff'
There is no reason for the issue.
On the third ground for appeal
According to the records, the original person who filed the lawsuit of this case on behalf of the plaintiff clan is the non-party 3's theory, but according to the facts acknowledged by the court below, the plaintiff clan elected the representative non-party 4 as the president at the ordinary general meeting on November 8, 1989, and confirmed the lawsuit of this case filed by the non-party 3, the former president of the non-party 3. Thus, the lawsuit of this case brought by the above non-party 3 is retroactively effective, and it is reasonable to view that the suspension of the acquisition by prescription of the defendant on the land of this case takes effect upon the filing of the lawsuit of this case claiming the cancellation of the transfer registration of ownership. Accordingly,
The issue is that the interruption of prescription cannot take effect when the above non-party 3, who is not a legitimate representative of the plaintiff clan, submitted the complaint of this case, and even if the non-party 4 confirmed the procedural acts until then by the lawful representative of the plaintiff clan, such ratification shall take effect only as to the procedural acts, and shall not take effect retroactively until the day the interruption of prescription takes effect, which is the validity of substantive law, unless the lawsuit is dismissed, and even if there is a defect in the qualification of the representative at the time of the institution of the family affairs, so long as the validity of the interruption of prescription is deemed effective retroactively without the dismissal of the lawsuit, and it shall not be deemed that the statute of limitations is interrupted at the time of ratification
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-soo (Presiding Justice)