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(영문) 서울고등법원 2016.01.29 2014나61823

지분이전등기말소 등

Text

1. Preliminary claim concerning the instant real estate among the part concerning the principal lawsuit of the Plaintiff-Counterclaim Defendant in the judgment of the first instance.

Reasons

1. In the first instance court’s trial scope, ① as the principal lawsuit, the Plaintiff filed a claim against the Defendant for the primary claim on the instant real estate (the claim on the cancellation of ownership transfer registration) and the conjunctive claim (the claim on the co-ownership division) and for the confirmation of the existence of the lease agreement with the Defendant, C, and D, and ② the Defendant filed a claim for the loan as a counterclaim.

On the other hand, the first instance court dismissed all of the plaintiff's main claims against the defendant for cancellation of the ownership transfer registration of this case (the claim for cancellation of the ownership transfer registration) and the conjunctive claims against the defendant, and accepted all of the claims for confirmation of the existence of the lease agreement with the defendant, C, and D, and accepted part of the defendant's counterclaim.

In regard to the above judgment of the first instance court, the Plaintiff, in its entirety against the principal lawsuit, omitted part of the Plaintiff’s appeal concerning the main claim concerning the instant real estate in the petition of appeal filed on December 5, 2014 (the Defendant omitted the purport of the appeal against the part of the Plaintiff regarding the portion of the Plaintiff’s main claim concerning the instant real estate (the Plaintiff shall implement the procedure for registration of cancellation of the share transfer registration made on April 15, 2010) but it is reasonable to view that the Plaintiff filed an appeal to the effect that he/she seeks to revoke all of the part against the judgment of the first instance and the part against the counterclaim against the lower court, in light of the entries in Paragraph (1) and the grounds for appeal and the entries in the preparatory documents in the trial.

2. The record reveals that the Defendant did not appeal the part against the counterclaim which rejected the claim for confirmation of the existence of the lease agreement among the part against the principal lawsuit, and the part which rejected the claim for confirmation of the existence of the lease agreement, and it is evident that the Defendant appealed the remainder other than the part which lost the part which lost the counterclaim.

Therefore, the subject of this court's adjudication is limited to the above appeal part of the plaintiff and defendant.

2. Basic facts

(a) the status of the Party 1.