[부동산명도][미간행]
Where a temple registered as a traditional temple under the Preservation of Traditional Buddhist Temples Act agreed to pay money to a creditor without obtaining the approval of the Minister of Culture and Sports and agreed to deliver real estate within the temple, the part of a monetary payment agreement shall not be deemed null and void.
Article 9 of the Preservation of Traditional Buddhist Temples Act
Plaintiff
Defendant ○○ Cancer (Attorney Han Jae-chul, Counsel for the defendant-appellant)
Gwangju District Court Decision 2006ReNa160 Decided November 23, 2007
The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.
1. According to the following circumstances, i.e., the Plaintiff’s loan 180 million won to the Plaintiff (hereinafter “Plaintiff”)’s construction of the temple building owned by the Defendant (hereinafter “Defendant”), according to the instant agreement, the Plaintiff filed a criminal complaint against the Nonparty as well as the provisional seizure of the Defendant’s non-party’s non-party’s non-party’s non-party claim, and the Nonparty, as the Defendant’s representative, completed the instant agreement and notarized the purport thereof. In light of the records, the lower court determined that the Plaintiff was not the non-party, but the non-party of the instant agreement. In so doing, the lower court’s determination is just and acceptable, and there is no violation of the rules of evidence, as otherwise alleged in the grounds of appeal.
2. In addition, according to the records, the agreement of this case is divided into a monetary payment agreement and a real estate delivery agreement with the purport of transferring the defendant's property when the defendant paid 500 million won to the plaintiff in installments and paid interest thereon each month, and if the defendant fails to perform his/her duty, it is deemed that the defendant made a monetary payment agreement even if there is no real estate delivery agreement. Thus, even if the part of the agreement of this case is in violation of the Korean Traditional Temple Preservation Act that stipulates that the transfer of real estate owned by traditional temples should be permitted by the competent Minister, even if the part of the agreement of this case is null and void, it cannot be deemed null and void even if the traditional Buddhist Temple should obtain permission from the competent Minister. Accordingly, it is proper that the court below determined that the portion of the monetary payment agreement of this case in the agreement of this case is valid, and there is no error in the misapprehension of legal principles as to the Traditional Buddhist Temple Preservation Act as alleged in the grounds of appeal.
3. Meanwhile, in a case where the existence of a right or legal relation disputed in a lawsuit has already been dealt with in the preceding suit between the same parties, and a final judgment thereon has been rendered, the parties cannot make any allegations that conflict with this, and the court may not make any judgment that conflict with this, and the existence of a final judgment above shall not be determined by the court ex officio without examining and determining it (see Supreme Court Decision 92Da3892 delivered on May 22, 1992, etc.).
According to the records, on February 12, 2004, the Plaintiff filed a lawsuit against the Defendant for the payment of KRW 180,000,000,000 for loans, and received a favorable judgment by the Seoul Central District Court 2003Da22702, and on December 7, 2004, upon the Defendant’s appeal was dismissed, the above judgment became final and conclusive on December 7, 2004. On May 27, 2003, the Plaintiff, on the ground that the above loans worth KRW 180,000,00 as the preserved claim, was 153 or 523,00,000,000,000,000 won for loans owned by the Defendant as KRW 500,000,000,000,000,000,000,000,000,000 won for the above 100,000,000 won.
If so, the court below should have reviewed whether the loan of KRW 180 million, which became final and conclusive in the agreement amount of KRW 500 million, includes the loan of KRW 180 million, and if it is recognized, the part of KRW 180 million in the lawsuit claiming the payment of the Plaintiff’s monetary amount of KRW 180 million, among the lawsuit claiming the payment of the Plaintiff’s monetary amount, becomes null and void as the above final and conclusive judgment becomes null and void as it is, and thus, it should have revoked the judgment ordering the payment, and the above KRW 180 million and damages for delay should have been dismissed. However, the court below dismissed the Defendant’s petition without deliberation at all, which is erroneous in the misapprehension of legal principles as to the validity of the final and conclusive judgment, and such illegality affected the judgment.
4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)