[소유권이전등기말소][집23(2)민,122;공1975.7.15.(516),8481]
Where the excess of the authority of an absentee property administrator is made after the expiration of the adjudication period for disappearance of the absentee, the validity thereof.
The act performed by the administrator of the absentee's property before the decision on appointment was revoked with the permission for excess of his authority is valid even if the act was made after the expiration of the adjudication period on disappearance of the absentee, and the effect of legitimate exercise of authority by the administrator is extended to the deceased's property heir.
Attorney Han Young-chul, Counsel for the defendant-appellee-appellant
Kim Young-young et al., Counsel for the defendant-appellant-appellee
Seoul High Court Decision 73Na1201 delivered on November 12, 1973
All appeals are dismissed. The costs of appeal are assessed against the Defendants.
The defendants' attorney's grounds of appeal are examined.
With respect to No. 1:
(A) Even if the act performed by the above authority before the decision of appointment was revoked with permission for excess of authority as an absentee property administrator, it is valid even if it was made after the expiration of the adjudication period for disappearance of the absentee (see Supreme Court Decision 69Da719, Jan. 27, 1970). Therefore, the effect of the administrator’s legitimate exercise of authority is that the trustee’s legitimate exercise of authority is extended to the deceased absentee’s property heir. In the same purport, the lower court did not err by deeming the non-party’s donation valid. The argument is without merit.
(B) The court below did not recognize the fact that the Defendants received the gift tax after deducting the amount of the gift tax from the public auction proceeds, which are the facts recognized by the court below, based on the evidence admitted by the court below, and therefore, the court below's argument that the Defendants received the amount of the gift tax, is not reasonable.
With respect to the second ground:
As long as the court below acknowledged the fact that the administrator of the non-resident Lee Jong-gu has legally donated the land of this case to Kim Young-young with the permission of excess of authority, the defendant's assertion in the lawsuit that is not merely denying the plaintiff's assertion, which is the above fact of recognition, is correct in the decision of the court below.
Therefore, this decision is delivered with the assent of all participating Justices.
Justices Ahn Byung-soo (Presiding Justice)