[소유권이전등기말소][공1995.8.15.(998),2793]
Where a creditor entrusted with the disposal of an immovable property for the repayment of gambling debts sells such real estate to a third party, the extent that such disposal becomes null and void.
In a case where a creditor, who was delegated by an obligor to dispose of a real estate for the repayment of gambling debts, sells such real estate to a third party, even if the act of sharing gambling debts and the agreement on repayment is null and void as it violates good morals and other social order under Article 103 of the Civil Act, the invalidation is limited to the portion where the above real estate constituting the act of performing the repayment agreement is appropriated for the repayment of gambling debts with the proceeds of disposing of it to a third party, and the portion where the right to represent the disposal of the real estate, which is not directly applicable to the act of performing the above repayment agreement, is not null and void. Thus, it cannot be deemed null and void even in a case where the third party, who was the other party to the transaction, who was unaware of the above circumstances, sells such real estate
Article 103 of the Civil Act
Supreme Court Decision 86Da40154 Decided April 28, 1987 (Gong1987, 881), Supreme Court Decision 94Da40154 Decided July 14, 1995
[Judgment of the court below]
[Plaintiff-Appellant] 1 et al., Counsel for plaintiff-appellant-appellant
Jeju District Court Decision 93Na1152 delivered on July 15, 1994
The part of the judgment of the court below against Defendant Daelim Construction Co., Ltd. shall be reversed, and that part of the case shall be remanded to Jeju District Court Panel Division.
The defendant is dismissed from the appeal by mutual savings and finance companies.
The costs of appeal to the Supreme Court are assessed against the same defendant.
1. The grounds of appeal by Defendant Daelim Construction Co., Ltd. (the trade name before the change: hereinafter referred to as “Defendant Co., Ltd.”) and the part of supplement in case of supplemental appellate briefs not timely filed, in addition to the supplemental appellate brief filed, are also examined.
According to the reasoning of the judgment below, when Nonparty 1, etc. retired from the second grade of the national school and let the Plaintiff lose money by drawing in the morale, the court below acknowledged that: (a) the money that Nonparty 1 lent to the Plaintiff as gambling funds led to KRW 295,00,000 in total; (b) the Plaintiff requested the Plaintiff to pay gambling debts from Nonparty 1, who delegated the disposal of the real estate of this case owned by the Plaintiff and agreed to appropriate the disposal price to pay the above gambling debts; and (c) Nonparty 1, on behalf of the Plaintiff, applied the sale price received after selling the real estate of this case to Nonparty 1, for the payment of the above gambling debts; and (d) the above maximum milk again sold the real estate of this case to the Defendant company without going through the above maximum milk; and (e) the ownership transfer registration was made without going through an intermediate registration in front of the Defendant company; and (e) the Plaintiff’s act was invalid by delegation of the right to dispose of the real estate of this case to Nonparty 1 and was in violation of social order.
In light of the records, the above fact-finding by the court below is all acceptable, and there is no error of law by misunderstanding the facts against the rules of evidence, such as the theory of lawsuit, and there is no ground to point this out.
However, if the facts are identical to the above, even if the act of sharing the above gambling debts and the agreement on the repayment thereof is null and void because it violates good morals and other social order under Article 103 of the Civil Act, it shall be limited to the part which appropriated the sale of the real estate in this case, which constitutes the act of performing the above repayment agreement, to the payment of gambling debts, and it shall not be deemed null and void even to the part of the act of granting the right of representation as to the disposal of the real estate in this case, which does not directly constitute the act of performing the above repayment agreement, to the non-party 1 (see Supreme Court Decision 86Meu1802 delivered on April 28, 1987). Thus, the above maximum milk, which is the transaction partner who did not know the above circumstances, cannot be deemed null and void from the plaintiff's agent, through the non-party 1, the agent.
Therefore, the court below, which held that the sales contract of this case between the non-party 1 who represented the plaintiff and the above largest oil is null and void, shall have affected the conclusion of the judgment by misunderstanding the legal principles as to the application of Article 103 of the Civil Act or the non-performance of reasons, which affected the conclusion of the judgment. Therefore, the argument that points this out
2. Although Defendant Co., Ltd filed an appeal by mutual savings and finance companies, it did not state the grounds for appeal in the petition of appeal filed by the above Defendant, and did not submit the appellate brief within the prescribed period.
3. Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant Company, the part of the judgment below against Defendant Company is reversed, and that part of the case is remanded to the court below. Defendant Company’s appeal is dismissed by the mutual savings and finance company, and the costs of appeal by the dismissed part are assessed against the same defendant. It is so decided as per Disposition by
Justices Ahn Yong-sik (Presiding Justice)