[토지소유권이전등기말소][집29(1)민,156;공1981.6.1.(657) 13897]
A. Whether the selection of an adopted child after the commencement of inheritance is the cause of the commencement of inheritance (negative)
B. Degree of indication of the purport of appeal
C. Whether a trial is omitted in a case where the dismissal of request is not indicated in the disposition although the reasoning of the judgment states that it is groundless (affirmative)
(a) Succession to the family head of family by an ex post adoption under the new Civil Code shall be commenced, but the succession to property shall not commence;
B. According to the plaintiff's petition of appeal against all of the principal lawsuit and counterclaim, the plaintiff appealed to the whole part against which the plaintiff lost. Thus, even if the indication of dismissing the counterclaim is omitted in the purport of the petition of appeal, the part of the counterclaim shall be deemed to have been appealed.
C. The reasoning of the judgment states that the preliminary claim is groundless, but it is the omission of a trial in the case of the preliminary claim without any mentioning it in the text.
Article 997 of the Civil Act, Articles 367(2) and 198(1) of the Civil Procedure Act
Supreme Court Decision 68Da1543 Decided November 26, 1968, 79Da1009 Decided July 22, 1980, Supreme Court Decision 66Da540 Decided May 24, 1966
Attorney Kim Nam-nam, Counsel for the defendant-appellant of the Lee Jong-do Agricultural Industry Development Association
Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant
Jeju District Court Decision 79Na24,25 delivered on July 3, 1980
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
The grounds of appeal by the plaintiff's legal representative are examined (the plaintiff's legal representative has the right to inheritance property).
As long as the head of the South and North who died at the time of the enforcement of the new Civil Act succeeds to the property of the deceased decedent, since the inheritance of the head of the family commences due to the post adoption under the new Civil Act, since the inheritance of the head of the family does not commence, even if any person adopted the property of the deceased decedent after the enforcement of the new Civil Act, he cannot be succeeded to even if he was adopted as the ex post adoption of the above head of the South and North Korea (see Supreme Court Decision 79Da1009, Jul. 22, 1980), the judgment of the court below is just in the purport
Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
(1) According to the judgment of the court of first instance, the plaintiff lost all the main claim and the counterclaim, and according to the plaintiff's petition of appeal, the plaintiff appealed all the part against the plaintiff, so even if the part of the counterclaim is omitted in the purport of appeal, the court below should be deemed to have not filed an appeal. Thus, the above part of the counterclaim is still pending in the court below because there is no judgment, and according to the records on 2., it is obvious that the plaintiff's conjunctive claim was joined and expanded only in the court below. Thus, the court below is inconsistent with the opinion of the party member although it states that the plaintiff's conjunctive claim is groundless - because there is no mentioning of the above conjunctive claim in the main claim - because there is no mentioning of the judgment of the court below about the above conjunctive claim - the above part of the conjunctive claim also in the court below's appeal
Justices Presiding Justice (Presiding Justice)