[소유권확인청구사건][고집1966민,401]
The case holding that the defendant cannot be deemed to have no interest in confirmation because he is currently missing.
A lawsuit for confirmation is a method of protecting the rights recognized in order to protect the status of the Plaintiff’s right holder in a case where a risk arises in the status or scope of the Plaintiff’s right due to the Defendant’s dispute over the Plaintiff’s principal legal relationship. As such, the court should review whether the Defendant deals with the Plaintiff’s legal relationship, i.e., whether there is a benefit in the protection of rights. Moreover, it is erroneous for the court to dismiss the Plaintiff’s lawsuit on account
Articles 205 and 388 of the Civil Procedure Act
Plaintiff 1 and four others
Defendant
Gwangju District Court of the first instance (66Ga1430)
The judgment of the first instance shall be revoked and the case shall be remanded to the Gwangju District Court.
The original judgment shall be revoked.
The goods in the attached Form shall be confirmed to be owned by the plaintiff, etc.
All the costs of lawsuit shall be borne by the defendant in the first and second instances.
(Change from the trial in the case of Gwangju City) 5-ro 52 in the attached list in the Dongdaemun-gu Seoul Special Metropolitan City confirms that the goods in the attached list are owned by the plaintiff, etc.
Litigation costs shall be borne by the defendant.
In the judgment of the first instance, the court of first instance dismissed the plaintiffs' claims for the following reasons.
In other words, the legal representative of the plaintiff et al. asserted that from the defendant on May 13 (1966 May 14, 1966) the defendant's dwelling, 5-52 acquired the goods indicated in the attached list, the ownership of the plaintiff et al., which is owned by the defendant, and employed the defendant as the seller of the above goods, and that the defendant denied the ownership of the plaintiff et al., and thus, the defendant claimed that the plaintiff et al., demanded confirmation of the main lawsuit to be confirmed because he did not deny the ownership of the above goods. Therefore, it is obvious that the defendant's whereabouts is still unknown in the record, and there is no evidence to acknowledge that the defendant is currently denying the ownership of the plaintiff et al., the above goods, and there is no special circumstance that the defendant again denies and denies them in the future.
In this case, it cannot be said that there is no benefit in confirmation because the above ownership of the plaintiff et al. should be immediately determined in an unstable state, and it cannot be said that there is no benefit in confirmation. Accordingly, the plaintiff's claim is unlawful. However, since the defendant asserts the plaintiff's principal legal relationship, it is the method of protecting the rights recognized in order to protect the plaintiff's status or right scope, the court in receipt of such a claim is the method of protecting the plaintiff's right holder in a case where the defendant denies the plaintiff's right holder's status or right scope. Thus, the court in receipt of such a claim does not need to assert the plaintiff's management relation (affirmative, or it does not need to be argued that the plaintiff's right relation is owned by a third party, and even if it denies the plaintiff's legal relationship, it should be examined by demanding the court to prove that there is no benefit in the protection of rights, and even if there is no such evidence, it cannot be seen that the defendant's act of denying the plaintiff's right's possession of the articles mentioned above in the attached list and rejected the plaintiff's claim.
Judges Kim-chul (Presiding Judge)