[소유권이전등기말소등][공1976.11.15.(548),9391]
Whether the real estate buyer can exercise the right of subrogation for the preservation of the right to claim ownership transfer registration only by the establishment of a sales contract.
In the event that "A" purchases the immovables from "B", the effect of the sale may only be the right of subrogation for claims against "B" to preserve the right of subrogation for claims against "B" until the payment of the price is made from "B".
Plaintiff (Counterclaim Defendant) (Attorney Kim Jong-sung, Counsel for the plaintiff-appellant)
Defendant-Counterclaim (Attorney Park Jae-hwan, Counsel for defendant-Counterclaim)
Seoul High Court Decision 75Na3015, 3016 Decided May 21, 1976
The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
The Defendant-Counterclaim Plaintiff’s ground of appeal is examined.
On the first ground for appeal
As long as it is recognized that the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) purchased real estate from the Nonparty, the Plaintiff is the validity of the sale in question, and the Nonparty has the right to claim the performance of the procedure for the registration of ownership transfer of the said real estate against the Nonparty, and the Nonparty can refuse to perform his/her duty until payment is made from the Plaintiff. Therefore, the lower court is justifiable to have determined that the Plaintiff may exercise the obligee’s subrogation right in order to preserve the Plaintiff’s right to claim the registration of ownership transfer against the Nonparty. Therefore, the Plaintiff cannot be employed on the premise that the claim for the registration of ownership transfer
As to the second and third points
According to the reasoning of the judgment of the court below, the court below determined that the sale and purchase between the defendant (Counterclaim plaintiff, defendant Eul) and the non-party (the non-party) alleged to have been entered into on the basis of the whole evidences at the time is null and void since the above sale and purchase took place by means of a false conspiracy in light of the facts and the facts, which are different from the ordinary sale and purchase, and the above sale and purchase were made by a false conspiracy. In light of the records, the court below is just in reviewing the facts and the judgment of the court below, and there are no errors in the misapprehension of legal principles as to the false conspiracy, such as the theory of lawsuit, or the incomplete hearing, or there is no errors in finding the facts without any illegality or evidence, and even if the disposal document was a disposal document, it may be rejected if there is a counter-proof. Thus, the court below's judgment 4- 1 (the same as the evidence A7-7) of evidence No. 4 was made after the fact-finding.
Concerning No. 4
No evidence cited by the theory of lawsuit is all submitted by the plaintiff, and the defendant did not have invoked it. Therefore, even if the defendant did not make any determination of evidence as to the defendant's assertion, the defendant cannot attack the original judgment on the ground of the omission of judgment.
Concerning the fifth point
The Nonparty’s assertion that the Nonparty ratified the registration of ownership transfer of the Defendant’s name is a new assertion that was not asserted by the Defendant until the closing of argument in the lower court, which is a fact-finding court.
Therefore, the 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.
Justices Ahn Byung-soo (Presiding Justice) (Presiding Justice)