[부동산소유권이전등기말소][집14(1)민,106]
Cases where there is evidence of assertion that a judicial compromise was taken place as a method of the trust, there is an error of lack of reason concluding that a trust relationship was extinguished solely on the ground that a judicial compromise existed.
If a judicial compromise is made with the content that the registration procedure for transfer of ownership is implemented, the above procedure for transfer of ownership cannot be asserted as a result of res judicata. However, if the above judicial compromise or the registration for transfer of ownership was made by the method of the trust, the trust relationship cannot be readily concluded solely on the ground that there was a judicial compromise, and if there is an expression of intent to cancel the trust later, the effect of cancellation shall not be denied.
Plaintiff
Defendant
Seoul High Court Decision 64Na470 delivered on December 30, 1964
The original judgment shall be reversed, and
The case is remanded to Seoul High Court.
As to the grounds of appeal Nos. 2 and 3 by Defendant Attorney
In the original judgment, on its reasoning explanation:
However, according to the content of the judicial compromise between the above non-party and the plaintiff on August 4, 1964, when the non-party expressed his intention to cancel the trust to the plaintiff, the above non-party has expressed any provision on the premise that there was a trust relationship between the above non-party and the plaintiff on December 4, 1957, and without being expressed any provision on the premise that there was a trust relationship between the above non-party and the plaintiff on the real estate, in other words, even if there was a trust relationship between the above non-party and the plaintiff on the real estate before the judicial compromise was established, the trust relationship between the above non-party and the previous two persons on the real estate should be deemed to be terminated once the above judicial compromise was established, and even if the non-party expressed his intention to cancel the trust relationship on the grounds of solitary, which did not appear in the above settlement clause on August 4, 1964, which was after the above settlement was established, it was determined that this conflict
However, as stated in the original judgment, even if there is a judicial compromise between the non-party and the above two persons that implement the procedure for the registration of ownership transfer of the real estate in question, and the res judicata has occurred as to the execution of the procedure for the registration of ownership transfer of the real estate in question, the non-party cannot assert the invalidation of the procedure for the registration of ownership transfer from the non-party in this case as a result of res judicata. Since this judicial compromise or the registration of ownership transfer of the original real estate in this case is not incompatible with the fact that it was made by the trust method, it cannot be concluded that the trust relationship is extinguished merely because the judicial compromise was made, and if there was an expression of intention of legitimate cancellation of trust, the effect of the cancellation is not denied, and according to the contents in Eul evidence No. 18, which adopted the original judgment, the plaintiff's judgment on January 8, 1958, which was subsequent to the above judicial compromise and the judgment on the non-party's acquisition of ownership transfer from the non-party in this case, which should not be justified if it is recognized that the non-party's trust relationship is no longer justified.
Therefore, it is so decided as per Disposition by the assent of all participating judges pursuant to Article 406 of the Civil Procedure Act.
Supreme Court Judge Lee Young-sub (Presiding Judge)