[2] The requirements and standard for determining whether the act of the second assignee in double selling real estate contravenes public order and good morals

[2] In a case where the owner of a certain real estate has an obligation to transfer the ownership of the same real estate by selling it to a third party again through a sale or other contract which causes the transfer of ownership, and thereby bears an obligation to transfer the ownership of the same real estate to a third party. However, in violation of the duty to transfer the ownership to the first transferor creditor, if the transfer of ownership has been registered to a third party and disposed of it, it does not constitute a violation of public order and good customs merely on the ground that the contract, such as sale or purchase, which causes the owner's obligation to transfer the ownership of such third party, is an opportunity to cause the owner's breach of duty as above. In order to violate public order and good customs, barring any special circumstance, the other party should be subject to sanctions for such invalidation, more practically speaking, there is a reason to justify the division of the ownership itself. In determining whether there is such reason to the second transferor creditor, the purport and contents of the contract in question should be considered as a whole in relation to the establishment of the contract in question and how the contract should be established and how it should be considered as a replacement of the agreement or its contents.

1. As to the grounds of appeal on the determination of parties to a contract

Even if a person committing an act of entering into a contract with another person's name and a document related to a contract was prepared using the name of the other person, if both the actor and the other party understand that the person himself/herself is a party to the contract, or even if not, if the other party's view that the actor becomes a party to the contract is reasonably evaluated from the other party's standpoint, the actor becomes a party to the contract and the effect of the contract belongs to the other party (see Supreme Court Decision 97Da22089 delivered on March 13, 199, etc.).

Examining the record in light of the above legal principles, even if Plaintiff 2 entered into the first sale contract of this case with Plaintiff 1’s movement, it is justifiable for the lower court to recognize Plaintiff 2 as the purchaser of the first sale contract of this case in light of the circumstances as stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal principles as to the confirmation of the parties to the contract.

2. As to the ground of appeal on the sociality of the second sales contract of this case

In a case where the owner of a certain real estate sells the same real estate to a third party by way of the sale and purchase or other contract which causes the transfer of ownership, and sells the same real estate again to fulfill the obligation to transfer ownership. However, in a case where the transfer of ownership is registered to the third party and disposes of it in the future, it does not constitute a violation of public order and good customs on the ground that the contract, such as sale and purchase, which causes the owner’s duty to transfer ownership, is an opportunity to cause the owner’s breach of the above duty to transfer ownership in the third party, is not null and void. In order to be contrary to public order and good customs, barring any special circumstance, the other party should be subject to sanctions on such invalidation, more substantially speaking, and there is a reason to justify the compromise between the owner’s own acquisition of right and its own acquisition. In determining whether there is such a reason to the second transfer creditor, it is reasonable to consider the establishment of the contract in question and its contents in a way that would generally be contrary to the purpose of the contract and its contents (see, e.g., Supreme Court Decision 2000 regarding the existence of the previous contract terms and circumstances.

Examining the record, the lower court’s determination that the instant sales contract was null and void against the public order and good morals is justifiable in light of the aforementioned legal doctrine. In so doing, the lower court did not err by misapprehending the facts or by misapprehending the legal doctrine as alleged in the grounds of appeal.

3. As to the ground of appeal on the “Ratification” of the First Sales Contract

The lower court determined that, in light of the circumstances stated in its reasoning, even if the first sale contract of this case was concluded by Nonparty 2, one of his inheritors, who died in December 197, sold the entire real estate of this case, which was the inherited property of Nonparty 1, who died in December 1997, to Plaintiff 2, as well as his inherited property of Nonparty 3, and without any authority granted from them, other inheritors, including Nonparty 3, etc., the lower court ex post facto determined that the said contract was valid for the other inheritors’ inherited property.

The original sales contract can be concluded with respect to an object not belonging to a seller (see, e.g., Article 569 of the Civil Act on the sale of another’s right). The first sales contract of this case also has the effect on the inheritance share of the instant real estate acquired by inheritance by other inheritors than Nonparty 2. Therefore, Plaintiff 2, the buyer, as the legal effect of the first sales contract of this case, has the right to claim against Nonparty 2 for the performance and delivery of the procedure for the registration of ownership transfer against the whole real estate of this case.

Therefore, the court below's explanation that the effect of the first sale contract of this case extends to the inheritance shares of the above other inheritors is appropriate only when there is "the person who has succeeded to" of the non-party 3 and other inheritors (the plaintiff 2 who purchased the real estate of this case pursuant to the first sale contract of this case is clear in the record that the registration of ownership has not yet been completed, so it cannot be deemed that the non-party 2's disposal of the real estate of this case has yet to be made, and therefore there is no ratification of the disposal act of this case. Thus, it is not appropriate for the court below to accept the Supreme Court's decision regarding the ratification of the disposal act conducted without authority in its determination as above). However, it does not affect the conclusion of the judgment accepting the plaintiff 2's claim on the premise that the

4. Conclusion

Therefore, the appeal 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 Ko Young-han (Presiding Justice)