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(영문) 대구고법 1973. 2. 15. 선고 72나329 제1민사부판결 : 확정

[토지소유권이전등기말소등청구사건][고집1973민(1),100]

Main Issues

Whether it constitutes an error under Article 109 of the Civil Code in a case where the land excluded from the road site is still incorporated and traded with the knowledge that it is still incorporated into the road.

Summary of Judgment

If a parcel of land, the subject matter of which was already incorporated into a road site, is specified as a road and sold at a intermittent value with the knowledge that it is still incorporated into a road site, it may be revoked because it constitutes an important error on the nature of the subject matter to be sold.

[Reference Provisions]

Article 109 of the Civil Act

Reference Cases

Supreme Court Decision 74Da54 delivered on April 23, 1974 (Supreme Court Decision 10695 Decided 10695, Supreme Court Decision 109(13)239, Court Gazette 4888,7841)

Plaintiff and appellant

Plaintiff

Defendant, Appellant

Defendant 1 and four others

Judgment of the lower court

Busan District Court (71 Gohap431)

Text

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

Purport of claim

Defendant 1: On January 27, 1970, with respect to the land of this case (number 1 omitted), 54 square meters and above (number 2 omitted), 66 square meters (hereinafter referred to as the "land No. 1 for convenience"), 162 square meters and 162 square meters (hereinafter referred to as the "the land No. 2 of this case"), the Busan District Court's receipt of the registration of transfer of ownership as No. 2634 on January 28, 1970; Defendant 2 issued the above registration No. 2878 on January 28, 1970 with respect to the land No. 2 of this case as to the land of this case as the above registration No. 4736 on February 24 of the same year; Defendant 3 received the registration of transfer of ownership as to the land of this case by the registration office No. 8158 on Nov. 14, 198; Defendant 4 received the registration of transfer of ownership as to the land of this case No. 2 of this case as the above registration office No. 364865.

Litigation costs shall be borne by the defendants.

Purport of appeal

The part against the plaintiff in the original judgment shall be revoked and the same as the purport of the claim.

(However, the part in favor of the plaintiff against the defendant 1 is excluded)

Reasons

There is no dispute between the parties regarding the registration of ownership transfer, the registration of creation of collateral security, and the registration of creation of superficies in order under each of the Defendants' names, as stated in the original purport of the claim.

Since each of the above lands was originally incorporated into a road by the Busan City Land Readjustment Project around December 1959, and the above plan was partially revised by the Minister of Construction and Transportation on January 9, 1967, the land No. 2 was released from the incorporation into a road and was incorporated into a road only after the cancellation of incorporation into a road. Even after the cancellation of incorporation into a road, the plaintiff thought that the above land still belongs to a road line. Thus, even if the above land was purchased by the defendant 1, 1, and 2, there was no experience in purchasing the above land at a low price and there was no time to purchase the above land at the above 0th price, and it was hard to find out that the above land acquired by the defendant 1, 1, and 2, it was invalid by the plaintiff's acquisition of the above land from the above 0th of 0th of the above land to the above 0th of the 0th of the above land, and it was hard to find out that the remaining land acquired by the defendant 1, 2000000th of the above land.

Therefore, the plaintiff's assertion that the above sale and purchase was null and void as a juristic act of which the plaintiff's above was no longer known at the time of the above sale and purchase, Gap's evidence 1-3 (except for the part which is not trusted in the rear), the testimony of the non-party 4 (except for the part which is not trusted in the rear), the result of the examination of criminal records at the court below's trial (except for the part which is not trusted in the rear), and the appraisal of the non-party 5, the non-party 1 and the non-party 2 were no more than 70 won for each of the above facts that the non-party 4 and the non-party 4's statement that the non-party 1 and the non-party 4 were no longer known at the time of the above sale and purchase, and that the non-party 1 and the non-party 4's statement that the non-party 1 and the non-party 5's testimony were no more than the above facts stated at the time of the above sale and purchase, and sale.

Next, as to the argument that the sale of this case was revoked on the ground of fraud or mistake of important parts, the court below's witness 4 and 9's testimony, and the criminal record verification at the court below's court's testimony of Defendant 1 (2 times in the prosecutor's office), 10, 11 and 12's protocol of examination of suspect against Defendant 1 among the results of the examination of criminal records at the court below, the statement of evidence against Nonparty 10, 11, and 18's public notice at the city of Busan, all of the land of this case were originally incorporated into the road site, and the land of this case was revoked on January 27, 1967, even if the land of this case was revoked on the ground that it was still incorporated into the road without knowledge of the above fact, and it was sold to Defendant 1 by indicating its nature as the road of the object to be sold, and there is no other counter-proof proof, so the sale and purchase of the land of this case with Defendant 2 can be revoked on the ground of important part.

However, with respect to the purchase and sale of the land of this case as seen earlier, the change of the land readjustment project cannot be deemed to have been made by mistake as to the purchase and sale of the land of this case, and the purchase and sale of the land of this case cannot be deemed to have been made by mistake, and the purchase and sale of the land of this case cannot be deemed to have been made by mistake, and each statement of evidence Nos. 2 and 11 (judgment) which the members believe, each statement of the witness Nos. 6, 4, and each statement of statement against the non-party Nos. 6, 7, and 4 in the criminal record verification result of the court below, and the part of the testimony of the non-party Nos. 7, 4 in the second trial record, the non-party Nos. 1, 1, and 2 were not proven to have induced the plaintiff in the purchase and sale of the land of this case without knowing it as the result of the on-site verification at the court below and the purport of the defendant No. 2's oral argument against the above defendant No. 2 was incorporated into the above land of this case. 20.

Thus, the above plaintiff owner is justified only for the sale part of the land No. 2 of this case. Thus, defendant 1 is obligated to implement the procedure for cancellation registration of transfer of ownership in the above defendant's name as to the above land.

Finally, the plaintiff alleged that the sale and purchase of the land No. 2 of this case was made by mistake in fraud or important part, and the remaining defendants except the defendant 1 also purchased the land with the knowledge of the above fact. Thus, it is difficult to recognize that the above defendants had been maliciously committed by the defendants, but the testimony of the defendant 1 et al. and the non-party 13 of the trial witness is not sufficient to acknowledge that the above defendants purchased the land of this case by fraudulent means under the evidence No. 8, 9,10 (Examination) of this case, and it is recognized that the defendant 1 et al. was reported in a newspaper. However, it cannot be concluded that the above defendants purchased the land of this case in bad faith, and even if the defendant 4 refused the exchange of the party party's personal inquiry of the party party, it is difficult to recognize that the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's above was correct in light of the above evidence.

Therefore, the plaintiff's claim for objection shall be accepted within the above scope of recognition and the remainder shall be dismissed without merit. In this conclusion, the judgment of the court below is just and the plaintiff's appeal is unfair, and it is so decided as per Disposition by applying Articles 384, 89, and 95 of the Civil Procedure Act.

Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju