[손해배상청구사건][고집1974민(1),293]
Whether the third party can assert the ownership of the real estate by means of a protocol of conciliation with the content of confirmation of ownership.
On February 9, 1969, the litigation compromise was established between the plaintiff and the non-party company to confirm that the building in this case is owned by the plaintiff and entered in the protocol. However, since the plaintiff was the plaintiff who was not the plaintiff's ownership transfer registration in the name of the plaintiff with respect to the building in this case, the above protocol of compromise alone cannot be viewed as acquiring the ownership of the building in relation to the defendant.
Article 206 of the Civil Procedure Act, Articles 186 and 187 of the Civil Act
Supreme Court Decision 64Da1721 delivered on August 17, 1965 (Kakad. 1656,1657); Supreme Court Decision 186(1)279 delivered on October 8, 1969 (Article 187(1)294 of the Civil Act); Supreme Court Decision 69Da1721 delivered on August 17, 1965 (Article 187(24)296 of the Civil Act)
Plaintiff
Defendant
Busan District Court (72 Gohap288)
The appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The original judgment shall be revoked.
From March 19, 1969 to the time when the decision of provisional injunction in Busan District Court No. 69Ka1384 was revoked, the defendant shall pay to the plaintiff money in proportion to KRW 60,000 per month.
The costs of lawsuit shall be borne by the defendant in both the first and second trials, and a declaration of provisional execution.
The plaintiff's real estate stated in the attached list (hereinafter the building in this case) was owned by the plaintiff but based on the executory decision of provisional injunction against entry and temporary injunction against the Busan District Court 69Ka1384 on March 18, 1968 by the defendant, based on the executory decision of provisional injunction against entry and temporary injunction against this case, it was impossible to use and profit the building in this case, thereby causing damage to the party's claim for damages. Thus, it was first examined the ownership of the building in this case in order to recover damages.
According to Gap evidence Nos. 1 to 4 (each certified copy of the conciliation protocol), which does not conflict with the establishment, Gap evidence Nos. 5 (No. 1 to 4 (each certified copy of the conciliation protocol), the building was registered as a preservation of ownership in the name of the non-party limited partnership company company, and on Feb. 9, 1969, the plaintiff can be recognized as having established a settlement in a lawsuit between the plaintiff and the non-party company in the purport that the building of this case is owned by the plaintiff and the non-party company, but the ownership transfer registration of this case was not passed through the plaintiff's name as to the building of this case. Thus, the above conciliation protocol between the plaintiff and the non-party company cannot be deemed as having acquired the ownership of this case even in relation to the defendant, and there is no other evidence to recognize that this building
In other words, the plaintiff asserts that the building of this case is not the plaintiff's ownership but the plaintiff's claim of this case by subrogation against the defendant of the non-party company in order to preserve the right to claim the transfer of ownership based on the above protocol of compromise against the non-party company, but the plaintiff can not exercise the right to claim the transfer of ownership against the defendant of the non-party company on the basis of this claim, and it is not possible for the non-party company to exercise the right to claim the transfer of ownership against the defendant of the non-party company on the ground of this claim, and even if it is expected that the obligation
Therefore, the plaintiff's claim of this case, which is premised on the plaintiff's ownership of the building or the right of subrogation against the above non-party company, shall be dismissed without merit, and the judgment of the court below is just and without merit, and the plaintiff's appeal is dismissed with this conclusion, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition.
[Attachment List omitted]
Judges Choi Jong-ro (Presiding Judge)