[광업권이전등록말소청구사건][고집1973민(2), 312]
Where a subsequent appeal has been filed against a final judgment made by public notice procedure, the validity of a compulsory auction based on the said judgment
Even if a final and conclusive judgment, which was the basis for compulsory auction, was made by service by public notice, and an appeal for subsequent completion thereof was filed, the judgment has become final and conclusive until a judgment for dissatisfaction is revoked. Therefore, it cannot be said that the registration of transfer of mining right made in the name of the defendant by compulsory execution is void.
Article 202 of the Civil Procedure Act
Plaintiff
Defendant
Seoul Central District Court (72 Gohap5949) in the first instance trial
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The plaintiff shall revoke the original judgment.
(2) On July 4, 1972, the Defendant fulfilled the procedure for cancellation of the registration for the transfer of mining rights, which was completed as No. 2905 of the Ministry of Trade, Industry and Energy No. 2905 on August 2, 1972, on the grounds of the decision to grant a successful bid with respect to the attached list No. 1 and 2 mining rights
(3) The court costs are assessed against the defendant in both the first and second trials.
The fact that the registration for the transfer of mining rights, such as the claim in the name of the defendant, has been made with respect to the mining rights (hereinafter referred to as the mining rights of this case) in the attached list Nos. 1 and 2 in the attached list,
The plaintiff, as the cause of the plaintiff's claim, established a sub-contract with the non-party 1 for a contract deposit of KRW 200,00,00 which was originally owned by the plaintiff, and received only 100,000 won out of the above deposit and became aware of the remaining 100,000 won as a result of the payment due to the non-party 1's default on payment, and the defendant is operating the mining business upon the transfer of rights under the above sub-contractor contract from the non-party 1. Thus, the plaintiff notified the non-party 1 and the defendant that the non-party 2 would be null and void, in collusion with the non-party 2 on August 9, 1966, the plaintiff would be entitled to receive the above non-party 2's claim for the above non-party 1 for the registration of the non-party 2's mining right under the non-party 2's name, and the defendant will not be entitled to pay the above 90,000 won for the above non-party 97.
On the other hand, even if the plaintiff filed an appeal for the subsequent completion of a final judgment which served as the basis for compulsory auction with respect to the mining right of this case was made by service by public notice, it shall be deemed that the judgment has become final and conclusive until the objection judgment has been revoked, and the appeal for subsequent completion filed by the plaintiff shall not be deemed to have been revoked by the plaintiff itself, as well as the fact that the final judgment has not been revoked due to the continuation of the final judgment, as alleged by the plaintiff, is apparent by the plaintiff itself, and as long as it has become final and conclusive even if the final judgment was in substance,
Therefore, the judgment of the court below, which held that the transfer registration made in the name of the defendant with respect to the mining right of this case under the premise that the transfer registration is null and void shall not be determined further, is without merit in the assertion itself, is justified and the plaintiff's appeal of this case is dismissed without merit. It is so decided as per Disposition by the assent of all participating Justices on the appeal.
Judge Han Man-Sung (Presiding Judge)