[소유권이전등기말소(본소)건물수거(반소)청구사건][고집1967민,220]
Where it is a false declaration of intention in collusion;
At the time of the transfer and purchase between the defendant and the two names, the market price was 1,300,000, the price was appraised by the defendant 2, the relation of possession was not asked to the plaintiff who is the owner of the building constructed on the site of this case. The defendant et al. did not ask the plaintiff who was the owner of the building constructed on the site of this case. The defendant et al. did not hold the right claim such as rent claim, etc. while the plaintiff possessed the building site for ten years, but did not hold the right claim such as the right claim, and the plaintiff expressed his intention to implement the procedure for the transfer registration of ownership of the building site of this case even until the transfer to the defendant 2. In light of the fact that the transfer registration of this case was made thereafter, it is true that the plaintiff et al. prepared a sales contract between the defendant et al., and that there was no fact that the purchaser was present and the defendant 2 did not receive the price.
Article 108 of the Civil Act
On November 28, 1963, 63Da493 decided Nov. 28, 1963 (Supreme Court Decision 8243 decided Nov. 8, 196, Supreme Court Decision 11 ②B citizen 265 decided Dec. 265, 196, Civil Code Article 108
Plaintiff
Defendant 1 and one other
Busan District Court (Law No. 66Ga1313, 2033)
This appeal is dismissed.
Expenses for appeal shall be borne by the defendant, etc.
The plaintiff, as to the site stated in the attached list, will implement the registration procedure for cancellation of ownership transfer registration due to sale as the Busan District Court No. 6626, Mar. 19, 1966.
Defendant 1 shall implement the procedure for the registration of ownership transfer for the land to Nonparty 1, 545, Dong-dong, Busan, Dong-dong, Busan, on November 5, 1953.
소송비용 부담은 피고 부담으로 한다. 피고는, 반소피고는 반소원고에 대하여 부산시 동구 좌천동 70의 3 도면표시 주선부분에 건립된 부록코조 루삥즙 가건물 건평 32평을 수거하고 동 대지 37평 4홉을 인도하라.
From March 30, 1966 to the completion of delivery of the above site, the counterclaim Defendant would pay to the counterclaim the amount of damages equivalent to the rent of KRW 30,000 at the rate of KRW 30,000.
The litigation costs of a counterclaim shall be borne by the counter-resident.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff through the first and second trials.
First, as to the principal claim:
First, with respect to the building site listed in the separate list No. 5 (hereinafter referred to as "the above building site"), the plaintiff did not dispute between the parties that the ownership transfer registration was completed under the above 0's name, and that the plaintiff constructed the building on this building site, and the plaintiff sold the building site to the non-party 1 and purchased the above building site from the non-party 1. As such, the defendant et al. denied it, No. 1, No. 8, No. 3, and No. 2, No. 1, No. 2, No. 5, and No. 1, No. 7, No. 1, No. 5, and No. 1, No. 7, No. 1, No. 5, and No. 5, No. 1, No. 1, No. 7, No. 1, and No. 1, No. 1, and No. 5, No. 7, No.
The defendant et al. defenses that the sale and purchase of this case was conducted before the enforcement of the new Civil Act, and cannot acquire ownership unless it is registered by Article 186 of the Civil Act, and that is, pursuant to Article 10 of the Addenda of the new Civil Act, the purchaser cannot make a claim for the transfer of ownership under the premise of ownership after December 31, 1963, 6 years have passed since the date of enforcement of the new Civil Act. According to Article 12 of the Addenda of the new Civil Act, the plaintiff et al.'s defenses such as the defendant et al. can be interpreted as legitimate as the purchaser's claim for the transfer of ownership by the claim of claim against the seller even after 6 years have passed after the enforcement of the new Civil Act. According to the plaintiff's complaint, the plaintiff et al.'s defenses such as the defendant et al. cannot be asserted as the plaintiff's 1, 1954.
Second, the defendant et al. asserted that this site is owned by the defendant 2, who was sold at the price of 50,00 won on March 19, 196, and the defendant 1 and the defendant 2 asserted that the sale and purchase between the defendant 1 and the defendant 2 is a false sale and purchase by mutual agreement between the two parties, and the defendant 1 and the non-party 4-2 (non-party 1,5,12,13, and the non-party 7)'s testimony of the court below and the non-party 14 (excluding the non-party 1 and the non-party 6-party 1, the non-party 2's testimony and the non-party 6-party 1 and the non-party 2's testimony that the non-party 1 and the non-party 3-party 1 and the non-party 6-party 1 and the non-party 2's testimony that the non-party 1 and the non-party 3-party 1 and the non-party 2's testimony were found to exist.
Then, according to the result of the verification at the court below and the result of the appraiser's appraisal at non-party 15, the plaintiff can be found to have constructed a building on this site as alleged by the defendant et al., but this case's claim under the premise that it is not owned by the defendant 2 has already been recognized in the principal lawsuit. Thus, the counterclaim claim under the premise that it is owned by the defendant 2 is not dismissed because it is groundless without making a decision on the point at which it is remaining.
Accordingly, according to the above recognition, Defendant 1 is obligated to implement the registration procedure for ownership transfer to Nonparty 1 who is the legitimate purchaser of the building site, and the registration for ownership transfer in Defendant 2, which is caused by the sale between the two parties, shall not be exempted from being cancelled due to the registration for invalidation of cause not in conformity with the substantive legal relationship.
Therefore, the plaintiff's claim of the principal lawsuit is justified and the judgment in its purport is justified. Thus, this appeal is dismissed pursuant to Article 384 (1) of the Civil Procedure Act, and the costs of the lawsuit shall be borne by the decision in accordance with Article 95 and Article 89 of the Civil Procedure Act.
Judges Kim Young-ro (Presiding Judge) Park Jae-ho