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(영문) 서울서부지방법원 2014. 02. 06. 선고 2011나10314 판결

소송물이 구체적으로 특정되지 않아 각하 대상임[국승]

Case Number of the immediately preceding lawsuit

Seoul Western District Court 2010Kadan47660 ( October 07, 2011)

Title

The subject matter of a lawsuit is not specified specifically and thus dismissed.

Summary

The part seeking monetary payment in the lawsuit of this case is dismissed because the subject matter of the lawsuit of this case is not specified, and the part seeking the procedure for cancellation registration is without merit due to no evidence.

Cases

2011Na10314 Claims, etc.

Plaintiff and appellant

KimA

Defendant, Appellant

1.B 2. WhiteCC 3. Parkdd 4. Republic of Korea

Judgment of the first instance court

Seoul Western District Court Decision 2010Da47660 Decided September 7, 2011

Conclusion of Pleadings

December 5, 2013

Imposition of Judgment

February 6, 2014

Text

1. All of the Plaintiff’s appeal shall be lodged.

2. The part of the claim for monetary payment in the lawsuit filed against the Defendants expanded or added in the trial shall be dismissed, respectively.

3. The plaintiff's request for cancellation registration of OO-dong 157-9 land, prior BB, and O-dong 157 O-dong 157 PO-dong 157 PO-dong 157 PO-dong 157 PO-dong O-dong 157 against the defendants added in the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court below, and the plaintiff's request for cancellation

4. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

1. The primary purport of the claim: (a) the Defendants jointly perform the Plaintiff’s obligation to register cancellation of the ownership on the ground of the purchase and sale of the land (No. 12015 of April 6, 1992, and No. 19200 of February 22, 2007, and No. 19200 of February 22, 2007) on the land registered as OO-Gu O-dong 157 and 157-9 of the same land (No. 12015 of March 6, 1992). The Defendants jointly and severally pay to the Plaintiff the amount of OOO-dong from March 29, 2006 to the delivery date of a duplicate of the complaint of this case, 9% per annum from the next day to the day of complete payment.

2. Preliminary Claim: (a) Defendant 0CC shall be jointly and severally liable to the Plaintiff. From August 4, 2004 to the delivery date of a copy of the complaint of this case, Defendant 0CC shall pay 9% interest per annum to the Plaintiff; and (b) Defendant BB and Park DoD shall jointly and severally pay 6% interest per annum from January 17, 2007 to the delivery date of a copy of the complaint of this case; and (c) Defendant B, 0CC, and Korea shall jointly and severally pay 0% interest per annum to the Plaintiff calculated at the rate of 20% per annum from the next day to the delivery date of a copy of the complaint of this case; (d) Defendant B, 0CC, and 123 land under the name of the Republic of Korea to the date of the complete payment; and (e) obligation to cancel and cancel the registration of seizure and disposition of public auction (registration cancellation).

(A) The Plaintiff’s primary and primary claims are separately sought, but it does not seek a trial on the conjunctive claims in preparation for a case where the primary claims are dismissed or rejected. Thus, this constitutes an incidental consolidation with non-joint claims made by attaching an order of priority. As examined below, the Plaintiff’s dismissal or dismissal of all of the Plaintiff’s claims is determined by dividing the monetary payment claim and the part of the claim for cancellation registration into convenience. Meanwhile, at the trial, the Plaintiff reduced, expanded, or added part of the claims against the Defendants as to the monetary payment claim, and expanded, or added part of the claims against the Defendants. At the trial, the Plaintiff filed a request for cancellation registration on land 157-9 OO-dong O-dong 157 O-dong 157 O-dong O-dong 157 O-dong O-dong O2 and 0CC against the Defendants, and additionally filed for cancellation registration on land O0CC 123 O-dong O23 at the time of O0CC against the Defendant.

Reasons

1. Determination on the legitimacy of the lawsuit seeking monetary payment among the lawsuit of this case

We examine ex officio the lawfulness of the lawsuit seeking monetary payment among the lawsuit of this case.

From the first instance to the first instance trial, the Plaintiff’s statement of deposit and withdrawal of money related to the Defendants, the Plaintiff’s bank account, etc., and stated that the Plaintiff’s claim for monetary payment was part of the claim by asserting that there was processing and sale, disposal of stolen goods, false entry in authentic deeds, fraud, embezzlement, disguised transaction, creation of funds, etc., and despite the statement to specify the cause of the claim in detail, the Plaintiff continues simple heating with the above content, and the amount of partial claim by each damage claim is not specified among the claims asserted by the Plaintiff.

If the subject matter of a lawsuit is not specified, the court does not specify the subject matter of a trial and the subject matter of a trial and the subject matter of a trial, and thus, the lawsuit is unlawful. As seen earlier, the Plaintiff asserted that there was an act of processing, selling, selling, selling, or disposing of stolen property without specifying the specific act by the Defendant. It is difficult to view that the subject matter of a lawsuit has been specifically specified on the grounds that the Defendants do not clarify the identity of the obligor in relation to each claim for damages of the Plaintiff’s assertion, how the Defendants specifically intervene, how the grounds for the responsibility lies, and what the grounds for the Defendants

In addition, even if a creditor has multiple damage claims against the same debtor, so long as the damage claims are separate claims that differ from the time when the damage claims accrue and the cause thereof, they constitute separate objects of lawsuit, and each of them may be different from the date of commencement of extinctive prescription or the defenses that the debtor may assert. As seen earlier, the creditor who seeks to bring a lawsuit must specify the amount of damages for each damage claim. As such, it is difficult to see that the subject matter of lawsuit is specified in this respect because the plaintiff only claims for several tort and the amount of partial claims against the defendants for each tort is not specified.

2. Determination as to the plaintiff's claim seeking implementation of the procedure for registration cancellation

A. Determination on the claim for OO-gu O-dong 157, 157-9

The Plaintiff: (a) the Plaintiff forged a sales contract, etc. with respect to the OO-dong 157 4,420 square meters prior to the division; (b) completed the registration of transfer of ownership on April 6, 1992 under the Daejeon District Court’s OO-dong O-dong 157 4,420 square meters; and (c) Defendant 0CC and B was involved in the registration of transfer of ownership on April 6, 1992; and (d) Defendant GabD assisted the Plaintiff to complete the registration of transfer of ownership by using the forgery sales contract, etc. as above; (b) the Defendants jointly assisted the Plaintiff to complete the registration of transfer of ownership by means of the forgery sales contract, etc.; (c) the Defendants asserted that the Plaintiff had a duty to cancel the registration of transfer of ownership on the O-dong 157 4,126 m29 m294 m2, 157-9

B. Determination as to the claim on the land of 123, Seo-gu, Seoan-gu, Seocheon-si, Seoan-dong

The Plaintiff, based on the unfair taxation by the Defendant Republic of Korea, completed the registration of the establishment of the Daejeon District Court’s OB, 123 O-dong O-dong 123 land, and the registration of seizure by the receipt of 88152 on December 22, 2001. As such, the Defendant JeonB, 00, and Republic of Korea jointly asserted that the Plaintiff had a duty to cancel the above seizure registration, but there is no evidence to acknowledge it, the said assertion is without merit.

3. Conclusion

Therefore, the part of the plaintiff's claim for cancellation of registration against the defendants of this case is unlawful, and each of the above part of the judgment of the court of first instance is dismissed. Since the part of the plaintiff's claim for cancellation of registration against the defendants of this case is just in conclusion, the plaintiff's appeal against the defendants of this case is dismissed. Meanwhile, the judgment of the court of first instance rejected the plaintiff's appeal for the reason that the whole lawsuit before modification of the plaintiff's claim was not specified in the court of first instance, but it is just in the part of the plaintiff's claim for cancellation of registration against the plaintiff of this case's land of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of 1, 700 OO's claim for cancellation of registration against the defendant of this case of this case of this case of this case of this case of this case of this case of this case of this case of this case of appeal of this case of this court's.

심급 사건
-서울서부지방법원 2011.9.7.선고 2010가단47660