[소유권이전등기청구사건][고집1968민,417]
If an absentee administrator is appointed by the court, only such administrator may, for the sake of an absentee, conduct litigation only on behalf of the absentee or against the administrator.
The plaintiff, as the defendant non-resident, was aware of the fact that the administrator was already appointed by the court before the lawsuit was filed. Even if the plaintiff was an absentee, if he returned to the previous domicile or residence, he had the party ability and the litigation capacity. However, since the defendant did not have any past fact, it should have been served on the administrator of the case against the defendant, and the service of this case directly served on the defendant is invalid as an unlawful act.
Article 25 of the Civil Act
Supreme Court Decision 68Da2021 Decided December 24, 1968 (Supreme Court Decision 8030Da8030 Decided December 24, 196, Supreme Court Decision 163Da327 Decided December 27, 196, Supreme Court Decision Article 27(9)211
Plaintiff
Defendant
Gwangju District Court Decision 67Ga310 decided Feb. 1, 198
The judgment of the first instance shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The plaintiff, on October 15, 1949, shall implement the procedure for the registration of ownership transfer due to the termination of the trust contract with respect to each real estate recorded in the list Nos. 1, 2, and 3 attached hereto to the plaintiff.
The court costs are assessed against the defendant.
The administrator of the defendant is seeking a judgment as shown in the text.
First of all, the appeal is legitimate from the legal point of view.
The plaintiff's claim of the principal lawsuit was filed directly against the defendant, but it is obvious that the plaintiff's claim of the principal lawsuit was filed to the court below on August 7, 198, because both a copy of the complaint and a summons of the date of pleading against the defendant are unable to be served, and the lawsuit was conducted by public notice on July 13, 1967, and this judgment was sentenced by public notice on July 13, 1967, and this judgment was served by public notice on the 14th day of the same month, and the fact that the plaintiff 1
However, according to the contents of No. 2-1, No. 2-1, 3, and 4 of the evidence No. 2-1, which the whole is deemed true because there is no dispute over the establishment of No. 1-1, the plaintiff was appointed as the defendant's administrator on Feb. 23, 196 as the defendant's pro-Japanese Branch of the Gwangju District Court's decision on Feb. 23, 196, the defendant was filed with the defendant's address at the last place, and the non-party 1 was not the defendant's address, and the lawsuit was not directed to the non-party 2, 3, and 4 before August 15, 200, and the defendant was tried to break up to the first instance court's first instance court's judgment, and the non-party 1 was not the defendant's address, and the defendant was not the defendant's first instance court's first instance court's judgment. The non-party 1 was not the defendant's first instance court's judgment.
Therefore, it is interpreted that the non-party 1, the administrator of the defendant, is the legal representative of the absentee, and the defendant's property management is entitled to appeal on behalf of the defendant. The fact that the appeal was filed after the expiration of the appeal period is seen above. However, the non-party 1 did not appeal during the appeal period. The non-party 1 did not know the fact that the judgment of the court of first instance was rendered against the defendant, but it is known that the non-party 1 did not know the fact that the lawsuit was filed on August 1, 1968, and that the judgment was rendered on August 1, 1968. The plaintiff filed the lawsuit in this case, without indicating that the plaintiff was the non-party 1, who filed the lawsuit, directly raised the defendant's address as the defendant to the last place and carried out it by service without giving guidance about the lawsuit to the non-party 1, which is interpreted as not filing an appeal within the period of time for which the judgment of the court of first instance is not responsible, and therefore, the appeal is lawful.
The plaintiff's legal representative is an absentee, and even if there is an administrator, the administrator is not a person who is the deceased, but can conduct an absentee litigation. The plaintiff's legal representative is no administrator of the defendant as the old-age 80 years old-age old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-age-old-in-court-in-court-until 35 years ago.
In addition, although the defendant's attorney is the defendant's friendship, the non-party 1 is a woman born on September 1, 1942 and cannot be a legitimate interested party to the defendant's property. However, the non-party 1 is the defendant's administrator appointed by the court, and thus the defendant's administrator has the right to manage the defendant'
The following facts were examined. The plaintiff's real estate listed in sub-paragraph 1 to 3 was owned by the deceased non-party 5, and the plaintiff's non-party 1 purchased money with the deceased non-party 5, and the answer stated in sub-paragraph 1 to 2 was trusted to the defendant on January 10, 1922, and the answer stated in sub-paragraph 2-1 to 5 is the non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 5's non-party 1's non-party 1's non-party 6's non-party 1's non-party 1's non-party 6's non-party 1's non-party 1's non-party 9's non-party 1's non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-6's non-party 1'
In addition, even if the real estate in family was owned by the plaintiff on October 15, 1949, it is difficult to believe that the testimony of Non-party 8, 9, and non-party 10, and 11 of the original trial and the trial witness at the court of the trial is the cancellation of the trust contract, and that the testimony of Non-party 12 of the trial witness at the court of the trial and the various documentary evidence of the plaintiff submitted by the non-party 12 are without any evidence to prove the above facts and there is no other evidence to prove that the trust contract was cancelled. Thus, the claim
If so, the plaintiff's claim of the principal lawsuit shall be dismissed as it appears to be reasonable, and the judgment of the court of first instance which differs from this conclusion is unfair, and the appeal of this case is justified.
Therefore, the judgment of the court of first instance shall be revoked and dismissed, and the costs of the lawsuit shall be borne by the plaintiff who has lost all the first and second trials, and it is so decided as per Disposition.
[Attachment List]
Judges Kim Dong-chul (Presiding Judge)