[소유권이전등기말소등청구사건][고집1981민,9]
A buyer has actively participated in the act of breach of trust, such as inducing the seller to sell more than two times, provisional registration and the effect of sale.
The provisional registration and sale in the name of the buyer, which the buyer actively takes part in the act of the buyer's breach of trust, such as inducing the seller to sell more than two times, is null and void.
Article 104 of the Civil Act
Supreme Court Decision 77Da1804 delivered on January 11, 1977, 76Da2083 delivered on January 11, 197, (Article 103(45)29 of the Civil Act, Article 554 of the Court Gazette, 98704 delivered on January 24, 1978 (Kadad 11711, Supreme Court Decision 26Nu1711, Supreme Court Decision 26Nu30, 103(1)27 of the Civil Act, Court Gazette 580No10610)
Plaintiff Incorporated Foundation
Defendant 1
Defendant 2
Seongbuk-do Branch of Seoul District Court (79 Gohap1040, 1103 (Counterclaim) Judgment)
The defendants' appeal is dismissed.
The costs of appeal shall be borne by the defendants.
The plaintiff (Counterclaim defendant, hereinafter the plaintiff) is the principal lawsuit and the defendant 2 is the defendant 1 with respect to the building site (number 1 omitted) in Yangju-gun-gun-gun-gun-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, Seoul Civil District Court No. 32618 on May 8, 1978, and the provisional registration procedure for the preservation of the right to claim the transfer of ownership was taken on July 22, 1978 as the provisional registration of the right to claim the transfer of ownership and the cancellation registration procedure for the transfer of ownership as prescribed by the same registry No. 58981 on July 22, 1978, and the defendant 1 implemented the procedure for the transfer registration of ownership on May 10, 1967 as to the above real estate on May 10, 1967. The defendant 2 is the counter-appellant that the plaintiff is the defendant 1 and the defendant 1 is the defendant 1, 2, 1,2,2, 1,2,2, and 1,2, 1,2,4, Gabbebbebebebebebebebebebebebebebebe.
The defendants shall revoke the original judgment.
Defendant 2, the judgment dismissing the Plaintiff’s claim, is seeking a declaration of provisional execution, such as the above counterclaim claim.
1. First, we examine the plaintiff's main claim.
On May 8, 1978, the land was owned by the same defendant who had registered the preservation of ownership in the name of defendant 1 in the name of the head office of Dong-gu, Gyeonggi-do, Yangju-gun (number 1 omitted), and was registered provisionally on May 22, 1978, and the fact that the principal registration of the transfer of ownership was passed on July 22 of the same year has no dispute between the parties.
In light of the above facts, Gap evidence Nos. 2, 4-1, 7, and 10-10, and the authenticity of the above part of the register of ownership transfer is acknowledged. Thus, if the testimony of the court below for the completion of Kim Jae-sung and Kim Jae-chul and the previous purport of each criminal record verification of the original court's decision and the party's trial were combined with the above facts No. 30-1, it is hard to find that the above real estate was transferred to the defendant 1, 70-1, and the above facts were known to the defendant 1, 70-2, and the above fact that the above real estate was transferred to the defendant 1, 70-1, 70-2, and the above facts were known to the defendant 1, 197-1, 70-7, and the defendant 1, 197-1, 70-7, 1, 200-7, 1,000-1,007.
However, even if the plaintiff purchased the above site on May 10, 1967, the defendants asserted that the extinctive prescription had expired as of May 10, 197, before the filing of the lawsuit on the ground that he did not exercise his right to claim the transfer of ownership for ten years from that time, and that the claim for the transfer of ownership had been terminated. However, the plaintiff purchased the above site from the defendant 1 on May 10, 1967 and received it from the defendant 1 and thereafter occupied the above site on the ground, and thereafter it has been recognized that the plaintiff occupied the above site thereafter. Thus, the right to claim for registration has not been subject to the extinctive prescription for ten years since the lapse of 10 years.
According to the above facts, the above sales contract between the defendants on April 19, 1978 and the sales contract on July 22, 1978 on the above site between the defendants can be deemed as an anti-social legal act committed by defendant 2 by actively participating in the act of double sale in violation of trust by defendant 1. Therefore, since provisional registration and the registration of transfer of ownership in the name of defendant 2 are all null and void, the defendant 2 is obligated to cancel each of the above registrations to the defendant 1, and the defendant 1 is obligated to implement the transfer registration procedure on the ground of sale on May 10, 1967 to the plaintiff.
2. The defendant 2's counterclaim is examined.
Defendant 2 owned the above site by the same defendant, and the plaintiff without any title possesses the above site by constructing a pre-section building in the counter-claiming claim, and without any title, the plaintiff asserts that he is obligated to remove the building and order its site.
However, as determined in the above suit, the sales contract between the Defendants on the above site is null and void as a anti-social legal act. Therefore, since the registration of transfer of ownership by Defendant 2 is null and void, it cannot be said that the same Defendant acquired ownership on the above site. Thus, the counterclaim claim in this case premised on the premise that he/she is the owner is the owner, shall not be deemed to return to that effect.
3. Accordingly, the plaintiff's claim against the defendant 2 in subrogation of the defendant 1 is accepted in its reasoning, and the defendant 2's counterclaim is dismissed without merit. The judgment below to the same effect is just, and the defendant's appeal is dismissed without merit, and it is so decided as per Disposition in accordance with Articles 95, 89, and 93 of the Civil Procedure Act as to the burden of litigation costs.
Judges Park Jae-chul (Presiding Judge)