[부동산소유권이전등기등청구사건][고집1965민,431]
Cases where an agreement on the intermediate omission registration cannot be deemed to exist;
It cannot be said that there exists an agreement on intermediate omission registration between the third party holding that the Plaintiff purchased the real estate purchased from the Defendant, and the Plaintiff paid the purchase price in subrogation of the Defendant, on the part of the Defendant:
Article 186 of the Civil Act
Supreme Court Decision 65Da2446 delivered on February 28, 1966
Plaintiff
Korea Assets Management Corporation
Countries
Gwangju District Court of the first instance (64Ga2706)
The original judgment shall be revoked.
The independent party's request for intervention shall be dismissed.
The total cost of the lawsuit between the plaintiff and the defendant shall be borne by the plaintiff, and the cost of the lawsuit incurred by the participation of the independent party shall be borne by the independent party intervenor.
The defendant's attorney shall implement the procedure for the registration of ownership transfer against the plaintiff on the real estate stated in the attached list on November 27, 1962.
The court costs are assessed against the defendant.
The defendant (Appellant) attorney shall revoke the original judgment.
The plaintiff's claim is dismissed.
All costs of lawsuit are assessed against the plaintiff.
The legal representative of an independent party intervenor (participation in the case at the trial) confirms that the real estate recorded in the attached list (the subject matter of the lawsuit at the trial) is owned by Nonparty 1, and the defendant asks Nonparty 1 to implement the procedure for ownership transfer registration on the real estate recorded in the attached list on November 27, 1962.
On November 27, 1962, the Defendant sold to Nonparty 1 1,520,00 the real estate as indicated in the separate sheet, which the Defendant owned, to Nonparty 1, and the fact that there is an indication on the registry among these real estate, but there is no dispute between the parties that it constitutes a site.
The plaintiff's attorney entered into an agreement with the plaintiff to omit the intermediate transfer registration of the real estate at the same time as above from the non-party 1 and to directly register the transfer of the real estate in the name of the plaintiff, and the plaintiff paid the price of the above real estate by subrogation of the non-party 1 to the defendant until August 27, 1964, and the defendant filed a claim for the principal lawsuit as the defendant did not perform his duty to register the transfer of ownership without any delay. However, in case where there are two or more persons, the registration is valid even if the first seller directly files the transfer registration to the buyer and the intermediate transfer registration was omitted from the first seller, and there is no clear evidence that the plaintiff, the defendant and the non-party 1 agreed to omit the transfer registration at the middle of this case without such agreement. Thus, the plaintiff's claim for omission of the intermediate transfer registration cannot be rejected as the plaintiff's claim for non-party 1 cannot be rejected.
On November 27, 1962, Nonparty 1’s agent purchased real estate as indicated in the separate sheet from the Defendant and acquired ownership by paying the price in full. Although the Plaintiff asserted ownership of the real estate in this case as the principal lawsuit, Nonparty 1’s agent is not entitled to exercise his right and thus, Nonparty 1 is not entitled to exercise his right, and thus, he is entitled to pay damages of KRW 1,008,964 in subrogation of the Nonparty, and 5% per annum from March 17, 1962 to the full payment system (Seoul District Court Decision 62A252) with respect to the obligation to pay damages of KRW 1,08,964 in subrogation of the non-party. It is argued that Nonparty 1’s independent party to the lawsuit is entitled to exercise his right as the obligor to preserve the claim, and thus, in order to participate in the independent party to the lawsuit pursuant to Article 72 of the Civil Procedure Act, the intervenor’s independent party to the lawsuit cannot be established as an independent party’s claim to acquire the ownership of the non-party 1 itself.
Therefore, the original judgment that accepted the plaintiff's claim is unfair, and the main appeal is reasonable, so the plaintiff's claim is dismissed. Since an application for intervention in the party's trial is unlawful, it is dismissed, and it is so decided as per Disposition by applying Articles 96, 94, and 89 of the Civil Procedure Act with respect to the bearing of litigation costs.
Judges Kim Dong-chul (Presiding Justice)