[소유권이전등기말소등][공1974.10.1.(497),8008]
Whether the court can recognize the establishment in consideration of the whole purport of the pleading in a case where the holder of the documentary evidence did not prove the establishment thereof on the site of the party concerned.
Even if the party did not prove the establishment of the documentary evidence, the court may recognize it as a free evaluation by taking into account the whole purport of the pleading, instead of other evidence.
Articles 328 and 187 of the Civil Procedure Act
The years of transfer;
Defendant Attorney Park Jong-chul, Counsel for the defendant
Daegu High Court Decision 72Na682 delivered on December 11, 1973
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The court below acknowledged, based on the timely evidence in the judgment of the court below, that the non-party 1, the plaintiff's fleet, purchased the forest of this case from the non-party 1, the plaintiff's fleet on March 20, 1949 in 35 won, and that among the successors of the above non-party deceased, the successors except the defendant (the first instance court and the co-defendants of the court below) of the above non-party 1 purchased their inheritance shares in the forest of this case by pretending to purchase and sell
In the case of this case, even if the holder of documentary evidence, in particular, did not prove its establishment as the site, the court may recognize its establishment by free evaluation, taking into account the whole purport of the pleading (see Supreme Court Decision 4291No. 728, Oct. 1, 1959). Thus, in the case of this case, it cannot be said that the court below erred in finding that the authenticity of No. 2 (sales Contract) of the witness Kim Jae-ro's testimony and the whole purport of pleading could be recognized. Therefore, it cannot be argued that the court below's determination that the above No. 2 was erroneous as the material for fact-finding that the above evidence No. 2 was used as the material for fact-finding, and there is no documentary basis for finding that the above evidence No. 2 was forged as the material for fact-finding. In addition, since the court below's recognition by evidence admitted by the court below is sufficiently acceptable, it cannot be said that there was no error in the misapprehension of legal principles as to the facts that the court below erred by misapprehending the legal principles as to prove.
In the end, the issue is based on the evidence duly rejected by the court below, and it is not reasonable for the court below to pay for the whole matters concerning the preparation of evidence and fact-finding.
Therefore, this appeal is dismissed, and 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 Yang Byung-ho (Presiding Justice)