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(영문) 대법원 1987. 4. 14. 선고 86다카1865 판결

[추심명령에따른소유권이전][공1987.6.1.(801),798]

Main Issues

The case reversing the judgment of the court below on the ground that there was an error in violation of the rules of evidence such as rejection of evidence with sufficient evidence without reasonable explanation of reasons, etc.

Summary of Judgment

The case reversing the judgment of the court below on the ground that the court below erred by misunderstanding the facts against the rules of evidence, such as logical rules and empirical rules, since the evidence supporting the alleged facts is rejected without reasonable explanation of reasonable grounds, and only those materials which lack evidence ability or have no particular help in fact-finding are not sufficient to find facts.

[Reference Provisions]

Article 187 of the Civil Procedure Act

Plaintiff, the deceased and the deceased

[Judgment of the court below]

Defendant-Appellee

Defendant-Appellant Park Jong-ap, Counsel for the defendant-appellant

Judgment of the lower court

Daegu High Court Decision 85Na1529 delivered on July 16, 1986

Text

The judgment below is reversed, and the case is remanded to the Daegu High Court.

Reasons

The grounds of appeal by the Plaintiff’s attorney are examined.

In its reasoning, the court below rejected the above 00 won for the non-party 1 to the non-party 1,091 shares out of the above 00 shares of this case and received all the proceeds to the non-party 1,00,000 won. On the other hand, the plaintiff received the above non-party 1 and the third party 4 order of seizure and the order of collection based on the above 00,000 won for the above non-party 1 to the non-party 40, the non-party 1 and the non-party 2 were not able to collect the above 00,000 won for the above 00,000 won for the above 0,000 won for the non-party 1,000 won for the above 0,000 won for the non-party 1 and the non-party 2's 0,000 won for the above 0,000 won for the non-party 1,000 won for the above 0,0000 evidence and 137.

However, in comparison with the evidence examined by the court below, the witness of the first instance court and the witness of the first instance court did not examine the above non-party 1 while working for the non-party 1 as the representative director in charge of the accounting affairs of the above company and the accounting affairs of the above non-party 1's individual transaction. The testimony of Dong-in is that "the above non-party 1 purchased the land such as this case where the non-party 1 was inside Dong-dong from the defendant jointly with the non-party 4, and delivered approximately KRW 70,00,000 per share and promissorysory note, etc. according to the non-party 1's order." The witness of the first instance court and the court below presented the above non-party 1 to purchase the above land by introducing the non-party 4 to the non-party 1, and arranged the plaintiff to purchase the above land as the non-party 1's share in the purchase price, and the plaintiff's testimony was not made as the non-party 4's non-party 1's non-party 1's non-party 4.

Meanwhile, according to the evidence that Nonparty 1 gave up the status of the joint purchaser, Nonparty 1’s testimony of the court of first instance to conclude that the above non-party 1 gave up the status of the joint purchaser, “the non-party 2 did not purchase the shares of this case 4 and 95,000,000 won, and paid 10,000 won which is a half of the down payment, and then transferred the status of the joint purchaser to Non-party 4 without any rate of 10,000,000 won, and the non-party 4’s testimony of the court below to the effect that the non-party 1 gave up the above status of the non-party 1 to the non-party 2, who did not give up the above status of the co-party 1’s purchase of the shares of this case, and the non-party 1 did not have a duty of 40,000,000 won for the non-party 1’s testimony to the effect that the above non-party 1 did not have been given the status of the co-party 10.

Therefore, the court below's determination that the above non-party 1 renounced the status of the joint purchaser and transferred it to the non-party 4 solely based on the materials which were neither sufficient evidence to support the plaintiff's assertion nor supporting the fact-finding without reasonable grounds, and that the above non-party 1's right to claim the transfer of ownership transfer registration against the defendant, which was issued on the premise that the above non-party 1's right to claim the transfer of ownership transfer registration against the defendant exists valid, is invalid. The court below's determination that the above non-party 1's seizure order, etc., which was issued on the premise that the above non-party 1's right to claim the transfer of ownership transfer registration against the defendant

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court which is the original court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)

평석

- 추심명령에 관한 판례 @ 추심금 @ 추심금 @ 추심채무금 황적인 @ 염기부 善學社

참조조문

- 민사소송법 제187조

원심판결

- 대구고등법원 1986.7.16 선고 85나1529 판결