[소유권이전등기][공2001.2.15.(124),343]
Requirements to consider the absence of the other party's legal representation right as grounds for retrial.
The purport of the Civil Procedure Act stipulating a defect of authority of representation, etc. as grounds for retrial is to protect the party’s side where such defect of authority of representation is originally defective. Thus, it is limited to the case where the other party can benefit by asserting such ground for retrial. Here, the case where benefits can be received refers to the case where the previous judgment may be finally changed into the other party’s interest even for reasons other than the above defect of authority of representation.
Article 422(1)3 of the Civil Procedure Act
Supreme Court Decision 66Da2569 Decided February 28, 1967 (Gong15-1, 200), Supreme Court Decision 80Da50 Decided February 8, 1983 (Gong1983, 479), Supreme Court Decision 88Da26987 Decided November 13, 1990 (Gong191, 57)
The clans of the member of the Cheongyang-gun, the Youngyang-gu, the Youngyang-gu, the Cheongyang-gu.
Defendant
Supreme Court Decision 91Da45578 delivered on May 26, 1992
The request for retrial shall be dismissed. Litigation costs for retrial shall be borne by the defendant.
The gist of the grounds for retrial asserted by the defendant is that the judgment subject to retrial had legitimate authority to represent the plaintiff's clan and led to the progress and confirmation of the lawsuit. This constitutes grounds for retrial under Article 422 (1) 3 of the Civil Procedure Act.
The purport of the Civil Procedure Act stipulating a defect of authority of representation, etc. as grounds for retrial is to protect the party’s side where such defect of authority of representation is originally defective. Thus, it is limited to the case where the other party can benefit by asserting such ground for retrial. Here, the case where benefits can be received refers to the case where the previous judgment may be changed ultimately to the other party’s interest even for reasons other than the above defect of authority of representation (see, e.g., Supreme Court Decisions 66Da2569, Feb. 28, 1967; 80Da50, Feb. 8, 1983).
However, in the case of this case, there is no argument about the grounds for interest in the retrial, and examining the judgment subject to a retrial and the judgment of the court below in light of the records, the real estate of this case for which the plaintiff clan seeks to implement the ownership transfer registration procedure against the defendant was originally entrusted to the descendants or members of the plaintiff clan, and changed the title trustee to the defendant on June 2, 1981. On January 16, 1990, the title trustee was agreed to change the title trustee's own shares by the agreement and completed the ownership transfer registration in the name of the defendant. Accordingly, the judgment of the court below which rejected the defendant's ground for appeal against the violation of the rules of evidence, the failure to determine, the failure to submit the judgment, or the violation of the law of law in the order of the reason for termination of the title trust of the plaintiff clan. Even if the representative of the plaintiff clan was defective in the judgment subject to a retrial, the defendant cannot be claimed as a result of the retrial unless there is any ground for rejection of the registration of ownership transfer of the plaintiff clan.
Therefore, the retrial of this case constitutes a case where there is no ground for retrial, or there is no benefit to assert as a lawsuit for retrial, and it is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jin-hun (Presiding Justice)