[토지매매사실확인등(본소)·건물철거등(반소)][집23(2)민,53;공1975.8.1.(517),8512]
Whether it is possible to issue an order for registration of ownership transfer even though the two real estate was sold and the defense of non-performance can be issued.
In the sale of real estate, where a seller has already sold the subject matter to another person before his/her birth and passed the registration of ownership transfer to a third person notwithstanding the existence of the seller's obligation to make the registration of ownership transfer, unless there are special circumstances, the seller is in the status of impossibility of performance and the seller raises such objection, unless there are special circumstances, the court shall not again order the registration of ownership transfer to the former buyer.
For day-time use
Freeboard Kim
immigration punishment;
Attorney Kim Tae-tae, Counsel for the defendant-appellant-appellee
Red Circuit et al. and one other
Jeju District Court Decision 73Na34, 74Na29 delivered on October 30, 1974
All of the appeals filed by the plaintiff Park Jong-il and the plaintiff Kim Jong-ok are dismissed.
The part of the original judgment against Defendant Go Jaecheon among the original judgment shall be reversed, and that part of the case shall be remanded to the Panel Division of Jeju District Court. The costs of appeal as to the above paragraph (1) shall be borne by the appellant.
1. Determination on the Plaintiffs’ grounds of appeal
However, as to the real estate in this case as in the original form, even if the ownership was acquired after the registration of the provisional disposition was passed through, and even if the ownership could not be asserted against the plaintiff Kim Jong-ok, the creditor of the provisional disposition, it is recognized that the registration of the provisional disposition was cancelled later, as long as it is recognized that the registration of the provisional disposition was cancelled after that time, the defendant Lee Jong-tae became the owner without any restriction (see this case, e.g., Supreme Court Decision 67Da1215, Sept. 5, 1967). Therefore, it is impossible to deny the acquisition of the ownership of the defendant Lee Jong-sik, who is the creditor of the provisional disposition, on the ground that it violated the provisional disposition against the provisional disposition against the plaintiff Lee Jong-tae, who is the creditor of the provisional disposition. This conclusion is just and there is no violation of law in the original judgment, and even though the plaintiff Kim Jong-ok purchased the portion of the original real estate in this case as in the situation of the original owner or completed the prescription, it cannot be justified in the judgment rejecting the plaintiff's claim.
2. Determination on the grounds of appeal by Defendant Go Jae-cheon’s attorney
In the sale of real estate, where a seller has already sold the subject matter to another person before his birth and passed the registration of ownership transfer to a third person, barring any special circumstance, barring any special circumstance, it is reasonable to view that the seller is in an impossible condition to perform the obligation to register ownership transfer to the third person. In this case, it is evident that, even if the non-party 1, who is the prior owner of the real estate, sold the real estate to the defendant Lee Jae-cheon, and the non-party 1, who had been the prior owner of the real estate, has already succeeded to the obligation to register ownership transfer to the defendant Hongcheon as the deceased's heir, even if he had already sold the real estate to the defendant Hongcheon, and the obligation to register ownership transfer to the defendant Hongcheon, who was the deceased's heir, was in an impossible condition to perform the obligation to register ownership transfer. According to the reasoning of the judgment below, it is obvious that the remaining decision of the court below was reversed as of April 17, 1974, and there is no objection against the defendant 260.
Therefore, all appeals by the plaintiffs are dismissed, and the costs of appeal are assessed against the losing party, and the part of the case is remanded to the Jeju District Court Panel Division for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Young-young (Presiding Justice)