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(영문) 서울고법 1973. 11. 22. 선고 73나1201 제6민사부판결 : 상고

[소유권이전등기말소청구사건][고집1973민(2), 389]

Main Issues

The case holding that if there is any defect in the disposition of the tax office in arrears, it is against the good faith and good faith that the owner of the goods sold at a public auction claims against him.

Summary of Judgment

Even if there is a defect against only one co-inheritors in the public sale of the disputing immovables due to the disposition on default on the gift tax, as long as the remaining co-inheritors received an amount excluding the amount in arrears of the above gift tax out of the successful bid price, the argument about the defect in the disposition on the above public sale shall be considered to have waived it. Therefore, the assertion that the above disposition on the public sale is null and void cannot be permitted in violation of

[Reference Provisions]

Article 2 of the Civil Act

Plaintiff 1 and appellant

Plaintiff

Defendant, Appellant

Defendant 1 and four others

Judgment of the lower court

Seoul Central District Court (66A4827) of the first instance court (Supreme Court Decision 66Da4827)

Judgment of remand

Supreme Court Decision 69Da1228 delivered on June 5, 1973

Text

1. Revocation of the original judgment;

2. Defendant 1, as to co-ownership share 6/22 of the real estate listed in the separate sheet No. 2, as to the co-ownership share 4/22 of the above real estate; Defendant 2 and Defendant 3, as to the co-ownership share 4/22 of the above real estate; Defendant 4 and 5, as to the co-ownership share 1/22 of the above real estate; as to the Seoul Civil District Court No. 10897, Mar. 20, 1963, as to the procedure for the cancellation of provisional registration to preserve the right to claim for ownership transfer registration based on the sale contract of March 15, 1963; as to each of the above real estate, the procedure for the cancellation of ownership transfer registration due to sale as part of the above court No. 38168, Dec. 31, 1965.

3. The costs of the lawsuit shall be borne by the Defendants throughout the remand.

Purport of claim and appeal

The plaintiff's attorney is seeking a judgment of the same purport as the disposition.

Reasons

The real estate listed in the separate list No. 1 is jointly owned by Nonparty 1 and Nonparty 2, and the real estate listed in the separate list No. 2 (hereinafter the above real estate) was owned by Nonparty 1 and Nonparty 2, and the deceased Nonparty 1 and Nonparty 3 were considered to have died on March 3, 1965 by the Seoul District Court. Defendant 1 is the deceased Nonparty 1 and Nonparty 3 is the deceased Nonparty 6, and the above real estate was not registered under the separate list No. 1 and Nonparty 6, and the registration of ownership transfer was made under the separate list No. 3 and Nonparty 1 and the administrator No. 6, which was the deceased Nonparty 6's non-party 1 and the deceased non-party 6's non-party 3's non-party 9's non-party 9's non-party 6's non-party 9's non-party 6's non-party 9's non-party 6's non-party 9's non-party 1's non-party 6's non-party 9's non-party 9's.

Therefore, in this case, it is problematic that the head of the tax office gave up the above registration of transfer of the above real estate under the name of the above co-inheritors, and that the head of the above tax office made a public sale against only the non-party 3 who is the registered titleholder. The real estate in this case is the public property among all co-inheritors, and the above gift tax imposed by the head of the Dongdaemun District Tax Office is the gift tax on the non-party 1 donated the real estate in the name of the deceased non-party 1's administrator. Thus, the deceased non-party 1, who is in the status of donor, was in the position to pay the above gift tax jointly with the above defendant when the above defendant 1 is delinquent, and since the status of the above non-party 1 was succeeded to the above co-inheritors, the delinquent taxpayer of the above gift tax should be considered to have been distributed to all the above non-party 3 including the above non-party 3 and the above non-party 2's share of the above real estate in the public sale procedure. Therefore, it is against the above non-party 3's share of the above co-inheritors.

If so, it is reasonable to accept the plaintiff's claim seeking the implementation of each procedure for registering the cancellation of the order entry, provisional registration, and transfer of ownership, since the plaintiff's claim against the defendants is well-grounded, the original judgment that differs from this conclusion is unfair, and thus, the plaintiff's appeal is reasonable, and therefore, the plaintiff's appeal is accepted, and the costs of lawsuit are assessed against the defendants through the transmission

Judges Kim Young-ho (Presiding Judge)

참조조문

- 민법 제2조 (위헌조문)

본문참조조문

- 민법 부칙 제25조 제2항

원심판결

- 서울민사지방법원 (66가4827 판결)

- 대법원 (1973.6.5. 선고 69다1228 판결)