[소유권이전등기말소][공1977.10.1.(569),10264]
In a suit for performance, eligibility as a party
In a lawsuit for performance, the plaintiff's qualification as the party itself as the plaintiff's claim itself, and the judgment is absorbed into the judgment on the propriety of the claim, so the claimant for his claim for performance is a legitimate plaintiff and the person asserted as the obligor is the legitimate defendant.
Plaintiff (Attorney Hwang Jae-sung et al., Counsel for the plaintiff-appellant)
Defendant (Re-Defendant) 1 and one other
The defendants assistant intervenor 1 and 50 others (Attorney Lee Jae-soo, Counsel for the defendant-appellant)
Seoul High Court Decision 73Na1 delivered on July 23, 1975
The appeal is dismissed.
The costs of appeal shall be borne by the defendants (the defendants) and the defendants' supplementary intervenors.
We examine the Defendant (Re-Defendant) and the Intervenor’s Intervenor’s First Ground of Appeal No. 1.
According to the reasoning of the judgment below, the court below held that the plaintiff, who was the above non-party 2, was the deceased non-party 1 who was the original owner of the land in this case and the deceased non-party 2 who will succeed to Australia and the property of this case, and was the deceased non-party 11:00 on January 10, 1951, and was the deceased non-party 2 through the above non-party 2, thereby making a decision on the inheritance as the plaintiff's family head, and therefore, it cannot be accepted that the court below did not make a decision on this point.
The above grounds of appeal are examined as follows.
As long as there is no fact that the family head has left his family register before the enforcement of the Civil Act, the marriage of the female head of the family after the enforcement of the Civil Act shall be deemed to be only the reason for the inheritance of the family head of the family, but not the reason for the inheritance of the family head of the family (see Supreme Court Decision 69Da1954 delivered on January 27, 1970). Thus, the court below cannot accept this issue with the purport that the court below erred by misapprehending the legal principles as to Article 25(1) of Addenda of the Civil Act
The above grounds of appeal are examined as follows.
The argument of the theory of the lawsuit is not a fact alleged by the Defendants, and not only is the fact that the Plaintiff asserted for its benefit, but also the land of the theory of the lawsuit is determined not to be distributed by the provisions of the Act on Special Measures for the Adjustment of Farmland Reform Project, and it appears that it was returned to the Plaintiff, the original owner, as the result of the judgment of the court below to the effect that the land of the theory of the lawsuit is owned by the Plaintiff, and therefore, it cannot be accepted as without merit.
In addition, in the grounds of appeal No. 1 of the above statement, the defendants and the defendants' assistant intervenors asserted that the plaintiff cannot be a legitimate party, while the court below did not judge the plaintiff's qualification as a party, although the court below stated that the plaintiff's qualification as a party was illegal, it is a matter of whether the dispute resolution of which person should be a party in a specific lawsuit is valid and appropriate. As such, the plaintiff's qualification as a party is an issue of whether the dispute resolution of which person should be a party in a specific lawsuit, and therefore, it is an issue that falls under the matter of ex officio investigation.
However, this issue is not identical in accordance with the form of the claim, but in the lawsuit for performance, the plaintiff's qualification as the party itself as the plaintiff's claim's claim, and the judgment is absorptiond into the judgment of the propriety of the claim, so the claimant for his claim for performance is the legitimate plaintiff's summary and the person who asserted as the obligor from that person is the defendant.
According to the purport of the pleading in this case, it is evident that the claim in this case is a lawsuit seeking performance against the Defendants, who is the subject of the Plaintiff’s right and the subject of the obligation, as the subject of the Plaintiff’s ownership, and it is argued that the Plaintiff cannot be a legitimate party against the Plaintiff seeking implementation of the procedure for cancellation of ownership transfer registration as to the real estate in this case, which was transferred to the Plaintiff by an invalid judgment against the deceased person on the ground that the real estate in this case was the real estate owned by the Plaintiff owned by the Plaintiff. However, in the case of a litigation trust, the theory in this case is not accepted by transferring the theory in this case, which is an independent premise, from the judgment of the relation of right as the party’s claim in the case of a litigation trust.
The grounds of appeal Nos. 2 and 3 are also examined.
Nor can we accept the theory, since all of the court below's arguments were based on evidence preparation and fact-finding issues, which are all the exclusive authority of the court below, to criticize the judgment below.
Ultimately, this appeal is without merit, and it is dismissed. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Il-young (Presiding Justice)