[소유권이전등기][공1996.5.1.(9),1222]
[1] The meaning of "donation in writing" under Article 555 of the Civil Code
[2] The case holding that a donation does not constitute a donation in writing where a written application for mediation is filed under the name of the other party in order to realize a gift intention through compulsory execution
[1] "Domination in writing" refers to a written donation expressed in writing to the other party by which a donor gives his/her own property to the other party in a contract of donation. Even if it is not specified in the contract of donation, if it is acknowledged that the written document is a document that directly expresses his/her intention of donation in consideration of the circumstances leading up to the preparation of the written contract of donation, it constitutes a written document under Article 555 of the Civil Code.
[2] The case holding that a donor cannot be deemed to have expressed his/her intention in writing on the sole ground that he/she paid a commission to realize his/her intention of donation by means of compulsory execution, and appointed an attorney to apply for provisional attachment on the pertinent real estate, and applied for mediation of a claim for the payment of consolation money due to de facto marital relationship against himself/herself
[1] Article 555 of the Civil Act / [2] Article 555 of the Civil Act
[1] [2] Supreme Court Decision 86Meu2634 delivered on September 27, 198 (Gong198, 1323) Supreme Court Decision 91Da6160 delivered on September 10, 1991 (Gong1991, 2505) Supreme Court Decision 92Da18481 delivered on March 9, 1993 (Gong193Sang, 1143)
Plaintiff (Attorney Park Jae-nam, Counsel for the plaintiff-appellant)
Defendant 1 and nine others (Attorneys Kim Young-hoo et al., Counsel for the defendant-appellant)
Seoul District Court Decision 95Na32517 delivered on November 9, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
1. On the second ground for appeal
The term "donation in writing" refers to a donation expressed in writing to the other party by which a donor gives his/her own property to the other party in a contract of donation. Although the written itself is not a contract of donation, if it is deemed that the written document constitutes a written document under Article 555 of the Civil Act, considering the circumstances leading up to the preparation of the written contract even if it is not a contract of donation, it shall be deemed that it constitutes a written document under Article 555 of the Civil Act.
However, since the expression of intent of the above donation must be expressed in writing to the donee, the mere fact that the deceased non-party 1 voluntarily paid appointment fees to the plaintiff and appointed an attorney to apply for provisional attachment of the real estate in the name of the plaintiff and to apply for mediation of the claim for the payment of consolation money following the de facto marriage settlement against himself/herself, it cannot be deemed that the above non-party 1's expression of intention of donation was expressed in writing to the plaintiff (see Supreme Court Decision 70Da1320, August 31, 1970).
The judgment of the court below with the same conclusion is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles like the theory of lawsuit. There is no reason to discuss
2. On the first, third, and fourth grounds
Since the rights and obligations under the gift contract are not inherited at the time of the donor's death, the donor's heir is entitled to cancel his/her declaration of intention of donation not based on the written document, and there is no doubt in our legal system that the ownership cannot be acquired unless the ownership transfer registration is made even if the donee occupies the donated real estate.
In addition, the plaintiff's right of retention is not reasonable, as the plaintiff's right of retention is not reasonable, because the plaintiff's right of retention is not asserted in the original judgment, and it cannot be a legitimate ground of appeal.
All the judgment of the court below on this part is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles like the theory of lawsuit. All the arguments are without merit.
3. Therefore, the appeal is dismissed and all 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 Chocheon-sung (Presiding Justice)