[부동산소유권이전등기청구 ][하집1995-1, 401]
Cases revoking a protocol of compromise corresponding to a ground for retrial
A case where a compromise prior to the filing of a suit constitutes grounds for retrial, on the grounds that a representative who does not have been delegated with the power of attorney, pursuant to the gift documents prepared under the control of the Martial Law Co Investigative Headquarters without freedom of decision making due to the suppression of the head
Articles 431 and 422(1)3 of the Civil Procedure Act
Korea
Respondent (Attorney Jeong-soo et al., Counsel for the defendant-appellant)
The protocol of compromise made on October 2, 1980 with respect to the case of applying for a compromise on the registration of real estate ownership transfer as of October 2, 1980
1. On October 2, 1980, the protocol of conciliation established on October 2, 1980 between the applicant (quasi-Appellant) and the respondent (quasi-Re-Appellant) regarding the case of applying for a compromise of real estate ownership transfer registration No. 80, 11938 in this Court
2. The costs of litigation shall be borne by the applicant for quasi-examination.
On August 23, 1980, the respondent (hereinafter referred to as the "Respondent") shall implement the procedure for the registration of ownership transfer on the ground of donation on August 23, 1980 with respect to the applicant (a quasi-Appellant; hereinafter referred to as the "applicant") with respect to the 70/88,890 shares in the 29th class 6th class 6th class 6th class of forest land (number omitted) in Seoul Special Metropolitan City, Nowon-gu (number omitted) (hereinafter referred to as the "the forest of this case"). The expenses for reconciliation shall be borne individually by the applicant.
The same shall apply to the order.
1. The composition of the protocol of conciliation subject to quasi-examination shall be considered to be made;
On October 2, 1980, in the case of the application for the settlement of real estate transfer registration between the applicant and the respondent on October 2, 1980, the respondent shall implement the procedure for the registration of ownership transfer on the ground of donation on August 23, 1980 with respect to the 29th 6th Ka-dong (number omitted) forest land in Seoul Special Metropolitan City, Nowon-gu, Nowon-gu on August 23, 1980. On November 26, 1980, the settlement cost shall be borne by each party.
2. We examine whether the grounds for quasi-examination exist.
A. The following facts do not conflict between the parties, or can be acknowledged in full view of the whole purport of the pleading in the statements in Gap evidence 1-4 to 6, Eul evidence 2-1 to 4, Eul evidence 1-2, Eul evidence 1-9, 11, 13, 15, 42, and 43:
(1) On July 17, 1980, the joint investigation headquarters affiliated with the applicant-affiliated martial law headquarters had the respondent conduct the joint investigation headquarters office of the headquarters of the Seoul Jung-gu Seoul Jung-gu without legitimate procedure of personal arrest, such as detention warrant, and had Nonparty 1, the investigator, Non-party 1 investigate whether the respondent took part in the so-called Kim Jung-gu case and the 5/18 Gwangju case on August 23, 198 when the contact with the outside is interrupted for 38 days until August 23, 199, and whether the respondent took part in the so-called Kim Jung-gu case and the 5/18 Gwangju case, and whether the Respondent who took part in the Do governor's position and the Respondent who took part in the Do governor's investigation.
(2) In the process of the above investigation, Nonparty 1 did not discover any specific criminal charges in addition to grasping that the whole property of the respondent is excessive to KRW 175,00,00,000 as the forest land of this case where the respondent was living in the above investigation, and reported this fact to the upper part. However, the upper part announced that the respondent's assets do not exceed KRW 175,00,000 in total, and KRW 175,000 in the upper part, and KRW 175,00,000 in the upper part, it would result in promoting the respondent's assets as an clean-feasible politician, and ordered the applicant to contribute part of the property by manipulating it as exceeding KRW 500,000 in excess of the market price at the time, and forced Nonparty 1 to make up part of the price of the forest of this case more equal to the market price at the time, and forced the respondent's family members as well as his family members to make a threat.
(3) In a case where the respondent first refused the above requirement, but later refused the request for the return of the pertinent property by dividing it into detention conditions for a long time, the contentious investigation crisis, the 12/12 military conflict incidents, and the 5/18 Gwangju case’s abduction and the state and the social fear crisis, etc. that continued to suppress bloodless force of the 5/18 Gwangju case, etc., the Respondent prepared all documents necessary to donate the forest of this case to the applicant under the suppression of resistance to the extent that there was no possibility of any other choice on the grounds of the fear that the above Nonparty 1’s threat would inflict any harm on his/her own or his/her family life, body, etc., and submitted them to the above Nonparty 1, and the respondent was released thereafter.
(4) On the other hand, around October 16, 1980, at the time of the applicant's non-party 1's non-party 1's attendance at the non-party 1-party 1-party 1-party 1-party 1-party 1-party 1-party 1-party 2-party 1-party 1-party 1-party 1-party 1-party 1-party 1-party 1-party 1-party 8-party 8-party 8-party 1-party 1-party 1-party 1-party 1-party 3-party 1-party 3-party 1-party 1-party 1-party 3-party 3-party 1-party 1-party 1-party 1-party 2-party 2-party 1-party 1-party 1-party 1-party 1-party 3-party 1-party 1-party 4-party 1-party 1-party 3.
(5) However, the respondent did not delegate to the above non-party non-party 1 the authority to file a lawsuit on the application for reconciliation prior to filing a lawsuit. Rather, the above non-party 1 did not have any authority to file a lawsuit on his behalf, and the above non-party 1 did not have any authority to file a lawsuit against the above non-party 1 to file a lawsuit against the above non-party 1, and at the time, the above non-party 1 transferred all the donation documents prepared under the pressure of the counter-party 1 to the above non-party 1 from the competent legal officer under the jurisdiction of the headquarters for the investigation of martial law and submitted them
According to the above facts, even if the respondent did not delegate a lawsuit to the non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party non-party's decision-making at the time of preparing the above donation
B. As to this, the applicant first filed a lawsuit against the applicant and the non-party Seoul Special Metropolitan City seeking cancellation of ownership transfer registration of the forest of this case against the applicant and the non-party in this court. On June 18, 1993, the respondent appealed against the above court on the ground that the res judicata of the conciliation protocol of this case was violated. On June 30, 1994, the appeal was dismissed by the Seoul High Court, but the above judgment became final and conclusive after the dismissal of the appeal. This constitutes a case where the parties in the proviso of Article 422(1) of the Civil Procedure Act asserted that the respondent cannot file a lawsuit for retrial due to the above reasons. However, the purport of the proviso of Article 422(1) of the Civil Procedure Act is that the parties asserted or did not know of the grounds for retrial in the appellate court of the pertinent case subject to retrial, and the above claim for cancellation of ownership transfer registration cannot be deemed to be a case prior to the conciliation of this case. Thus, the above ground for appeal is no more reasonable.
Then, even if the non-party 1 is not an attorney delegated by the respondent, the Respondent is entitled to receive the original copy of the protocol of conciliation of this case and the original protocol of protocol of protocol of protocol of protocol of protocol of this case, which is recorded in the statement prepared by the original Respondent, were found to have been prepared as having donated the whole protocol of protocol of 29 No. 6 of Seoul Special Metropolitan City, Nowon-gu, which includes the forest land of this case to the applicant for correction, and eventually, the Respondent was issued a decision of correction of the protocol of protocol of protocol of this case which is corrected as 70/890 of the forest land of this case which is the forest of this case from the court of this case as 70/890,000 shares of the above Respondent of this case, and the above Respondent's right of protocol of protocol of protocol of this case was not prepared as 90/100,000 of the original protocol of protocol of protocol of this case to the above Respondent, 208/100,06,006.
3. Conclusion
Therefore, in the case of reconciliation subject to quasi-deliberation of this case, the litigation representative of the respondent without the power of attorney shall be deemed to have participated in the case of reconciliation subject to quasi-adjudication of this case, and thus the protocol of reconciliation subject to quasi-adjudication of this case shall be revoked. Thus, the quasi-adjudication of retrial of this case shall be accepted, and the protocol of compromise established on October 2, 1980 in the Seoul Seoul Civil District Court shall be revoked, and it shall be decided as per Disposition by applying Article 89 of the same Act
Judges Cho Jae-hwan