[부동산강제경매신청취하][집14(2)민,046]
In case where the parties have entered into an agreement to withdraw an application for compulsory auction, whether the withdrawal may be requested by a lawsuit for the reason that the application has not been withdrawn.
The agreement to withdraw an application between the parties to compulsory execution is valid under the private law, but it is not possible to seek the disposition of the rights under the public law.
Article 205 of the Civil Procedure Act
Plaintiff
Defendant
Daegu High Court Decision 65Na522 delivered on February 17, 1966
The original judgment shall be reversed, and
The case shall be remanded to the Daegu High Court.
Since the litigation requirements are related to the litigation requirements, the case is examined ex officio.
A contract between one party and an applicant for compulsory execution to withdraw an application for compulsory execution, which is in progress for a specific object, shall be valid as a contract under private law. However, an applicant for compulsory execution violates the contract and does not withdraw the application, and claiming a withdrawal by direct lawsuit is seeking a disposition of a claim for compulsory execution, which is a right under public law, and thus, cannot be said to be a claim for a disposition of a claim for compulsory execution, which is a right under public law, but the original judgment has accepted the first instance judgment, and thus, it is illegal to have accepted the first instance judgment. Thus, without proceeding to decide on the place of appeal, the original judgment shall not be reversed by this point.
However, in this case, the plaintiff asserts that the real estate was originally owned by the non-party 1, and was transferred to the plaintiff and the designated parties on 1948 or 1950, respectively, but the non-party 1 died on or around 1960, while the transfer registration was not made, and the defendant applied for a compulsory auction to the non-party 2, the non-party 3, and the non-party 4 for a compulsory auction to collect the claim against the non-party 1's heir, and the auction procedure is in progress. Thus, the plaintiff et al. entered into a contract on February 6, 1964 with the defendant, and the defendant received 62,00 won from the plaintiffs, and withdrawn the request for auction. The defendant shall receive 50,000 won from the plaintiffs, and the remaining 12,00 won shall be paid by the defendant until December 15, 1964.
Therefore, the plaintiffs, who did not complete the registration of transfer after purchasing from the owner in 1948 or 1950 with respect to the real estate, were in a position to oppose the defendant's acquisition of ownership. However, if this contract was concluded between the defendant and the defendant on the part of the plaintiff's owner, the defendant cannot be deemed to have approved the acquisition of ownership on the land of the plaintiff. Therefore, the plaintiffs can oppose the defendant's acquisition of ownership on the land of this case. Thus, since the plaintiffs can oppose the defendant, the plaintiff can file a lawsuit against the defendant against the defendant against the third party on the land of this case, and the court below needs to clarify whether the purport of the claim against the plaintiffs is not a claim to that effect.
It is so decided as per Disposition by the assent of all participating judges for any more reasons.
Justices of the Supreme Court Dog-gu (Presiding Judge) Dog-Jak and Mag-gu Mag-gu