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(영문) 대법원 1976. 4. 13. 선고 75다2234 판결

[소유권이전등기말소][공1976.5.15.(536),9103]

Main Issues

Whether the act of donation of forest land necessary for inspection is valid or not.

Summary of Judgment

In order for a person who was the chief inspector of a temple to enter the temple, it shall pass through the temple, and even if the donation of the forest, which is the most important property of the temple owned by him, is to make it impossible to achieve the purpose of the temple and to endanger the existence of the temple itself, the donation of the forest, which is the most important property of the temple, is to be null and void.

Plaintiff-Appellee

Attorney Kim Jong-sung et al., Counsel for the defendant-appellee

Defendant-Appellant

Attorney Kim Tae-tae, Counsel for the defendant-appellee

original decision

Seoul High Court Decision 75Na751 delivered on November 5, 1975

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

Judgment on the grounds of appeal Nos. 1 and 3 by Defendant Attorney;

Since inspection is a non-permanent organization with the proper purpose of fact-finding, law enforcement, and edification of believers, it is hard to see that the acts of the plaintiff's donation of various historical materials, such as Buddhist, portraits, tin towers, etc., which are derived from historical purposes for the realization of that purpose, were the only association which owned and managed the land and structures for the purpose of raising Buddhist trees, as well as the fixed number of Buddhist land and structures for the purpose of legal enforcement or scenic view within the surrounding area of the inspection, and it is hard to see that the plaintiff's act of disposing of all or part of the remaining property after the donation of the plaintiff's past forest for the purpose of the inspection was in violation of the rules of evidence for the realization of that purpose, and thus, it is hard to see that the plaintiff's act of disposing of all or part of the remaining property after the donation of the plaintiff's past inspection was the only association for the purpose of keeping the plaintiff's past inspection's historical evidence and the management of the plaintiff's past inspection.

Judgment on the second ground for appeal

However, even if the donation of forest land was made for the establishment of the Buddhist Institute for the defendant corporation and the purpose of the school establishment was the same as the theory of the lawsuit, it is not the original purpose of the inspection, but it is not the original purpose of the inspection. However, even if the disposal of the forest land is not contrary to the purpose of the inspection, it is impossible to carry out the inspection purpose as it is, or the existence of the inspection itself is in danger, or the disposal of the forest property is made in accordance with certain procedures, the disposal of the property shall not be null and void as a matter of course, even though the disposal of the forest land was made within a certain procedure. Therefore, in this case, since the fact-finding is confirmed as seen above in the first point of the issue, it cannot be said that there was an error of failing to examine the purpose of the school establishment, and it cannot be said that there was an error of exercising the right to request for explanation, and it cannot be said that

Judgment on the fourth ground for appeal

Even if there is such error as set out in the theory of lawsuit as to the part that the forest land cannot be acquired by prescription as to the defendant's assertion on the acquisition of prescription in the original judgment, it does not affect the conclusion of the judgment, and the decision does not affect the conclusion of the judgment, and there is no error in the misapprehension of legal principles in the disposition that judged that the donation of this case to be null and void as a matter of course is the same as that of the first place, and therefore, the argument cannot be adopted.

Therefore, the appeal is dismissed as without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Han-jin (Presiding Justice)

심급 사건
-서울고등법원 1975.11.5.선고 75나751