[소유권이전등기절차이행등][공2001.2.15.(124),358]
In a case where the administrator of an absentee agreed to perform the procedure of permission for excess of authority but neglected to do so, whether the other party can enforce the procedure of permission (affirmative)
The court's decision to permit the sale and purchase of an absentee's property by an administrator of absentee may be made by ratification of the sale and purchase of the property for which permission was obtained as well as the future disposal of the property. The court's ex post facto permission for an act beyond the authority of an administrator of absentee is a non-contentious act conducted by the court in the position of guardian and supervisor with respect to a juristic act by a private person. However, unlike the filing of a lawsuit or a corresponding application, the procedure for application is entirely within the authority of the court. However, unlike the filing of a lawsuit or a corresponding application, if the declaration of intent is made, the purpose of the procedure can be achieved without the obligor's active cooperation or continuous act. Thus, even if the application falls under the right of claim under public law, if the administrator of an absentee agrees to perform the procedure for permission for excess of the authority, the other party may seek the implementation of the procedure pursuant to the above agreement, and if the judgment becomes final and conclusive, the application for permission shall be deemed to have been made by the statement of
Article 25 of the Civil Act, Article 226 of the Civil Procedure Act / [Institution of Lawsuit], Article 695(1)
[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellee)
White Construction Co., Ltd. (Attorney Park Chang-hoon, Counsel for defendant-appellant)
Defendant 1 and one other
Seoul High Court Decision 98Na53105 delivered on February 25, 1999
The part of the lower judgment against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. The appeal against Defendant 1 is dismissed, and the costs of appeal are assessed against the Plaintiff.
The grounds of appeal are examined.
1. Determination as to Defendant 1
Defendant 1 shall not be dismissed due to the lack of the statement of grounds of appeal in the petition of appeal and the statement of grounds of appeal.
2. Determination as to Defendant 2
A. The lower court rejected the instant lawsuit on the ground that, on the ground of an agreement with Defendant 2, the Plaintiff, the administrator of Defendant 1, sought an application for permission for excess of authority regarding the instant sales contract, on the ground that such application constitutes a kind of procedural act and seeks the disposition of public rights under public law, and even if the Plaintiff was rendered a decision on its performance, it does not constitute a substitute for the application for permission for excess of authority by Defendant 2, the administrator of the absentee, which is the administrator of the absentee, on the ground that there is no benefit of protection of rights, and thus, it is unlawful.
B. The court's decision to permit the sale and purchase of an absentee's property owned by an administrator of an absentee can be made by means of ratification of the sale and purchase of king as well as the future disposal of the permitted property (Supreme Court Decision 80Da1872, 1873 Decided December 14, 1982). The court's ex post facto permission on the excess of the authority of an administrator of an absentee is a non-contentious act conducted by the court against a private person as a guardian and is entirely within the court's authority. However, unlike the filing of a lawsuit or a similar application, the procedure for such permission is entirely subject to the court's authority. However, the procedure for filing a lawsuit can achieve its objective even without the obligor's active cooperation or continuous act, so even if the application falls under the public law's right to claim as a litigation, if the absentee administrator agrees to perform the procedure for filing an application for permission for excess of the authority, the other party can file a lawsuit against the implementation of the above agreement, and such an application for permission becomes final and conclusive pursuant to Article 695(1).
Supreme Court Decision 66Da564 Decided May 31, 1966, cited by the court below, is a motion to withdraw a compulsory execution application, and it is not appropriate in this case as it is different from this case.
C. Therefore, the lower court’s rejection of the instant lawsuit against Defendant 2 on the ground that the instant lawsuit against the Plaintiff is unlawful is erroneous, which erred by misapprehending the legal doctrine on the subject of a lawsuit seeking performance ordering the statement of intent, thereby adversely affecting the conclusion of the judgment. The ground of appeal on
3. Therefore, the part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the court below. The appeal against Defendant 1 is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Seo-sung (Presiding Justice)