[부동산소유권이전등기말소등][집13(1)민,141]
Whether a lawsuit seeking cancellation of the registration of a share of jointly inherited property and the claim for confirmation of the existence of such share is a requisite co-litigants.
A lawsuit seeking cancellation of registration and confirmation of existence of a right of share of co-litigation is not a necessary co-litigation but a common co-litigation.
Article 63 of the Civil Procedure Act
Lee Dong-i et al. (Attorney Shin-yang, Counsel for the defendant-appellant)
Lee Ho-hoon et al. (Attorney Lee Lee-hoon et al., Counsel for the plaintiff-appellant)
Daegu High Court Decision 63Na427 delivered on December 23, 1964
Of the original judgment, the part concerning the plaintiff Kim Jin-ray, abnormal morals, Lee Yong-Nam, Lee Jae-Nam, and Lee Jae-Nam is reversed, and the judgment of the first instance on the same plaintiffs shall be revoked.
The lawsuit against the plaintiff Kim Jong-su, the former, the latter, the latter, the latter, the latter, the latter, the latter, the latter, was concluded with the withdrawal of the lawsuit by the same plaintiffs
Plaintiff Ehyp and movement are all dismissed. The appeal by Ehypin is all dismissed.
The costs of litigation incurred between the plaintiff Kim Jong-su, Lee Young-soo, Lee Yong-Nam, Lee Jae-Nam and the defendants shall be borne by the above plaintiffs through the first, second, and third instances after the withdrawal of the lawsuit.
The costs of appeal shall be borne by the aforementioned plaintiffs for the part arising between the plaintiff's moving timber and the defendants.
We examine ex officio the part of the original judgment against the plaintiff Kim Jin-Jon, Lee Jin-Jon, Lee Jong-nam, Lee In-Jon, Lee In-Jon, and Lee
The court below rendered a judgment on the merits under the premise that the above plaintiffs' lawsuit cannot take effect on the ground that the plaintiff 5 claims for cancellation of the registration of real estate ownership transfer and the plaintiffs' claims for confirmation of the existence of each right to share cannot take effect on the ground that all of the plaintiffs' joint inherited property are necessary co-litigations. However, since it is apparent that the plaintiffs' claims for cancellation of the registration of the principal case and confirmation of the existence of right to share are ordinary co-litigations seeking cancellation of the registration and confirmation of the existence of right to share by asserting their share in co-litigations, the court below revoked the judgment of the first instance court on the premise that all of the plaintiffs are pending in the lawsuit, and made a declaration of the completion of lawsuit against the above plaintiffs 5, the court below erred by misapprehending the legal principle on the plaintiff 5 as a requisite co-litigation, thereby making a judgment on the merits of the lawsuit with the knowledge of the necessary co-litigation in the first instance court.
Therefore, the part of the original judgment with respect to the above five plaintiffs is reversed, and at the same time, the lawsuit on this part is obvious by the withdrawal of the lawsuit bound by the records (No. 248 of the records) which was the effective withdrawal of the lawsuit during the continuation of the court of first instance. Therefore, this lawsuit has already been concluded.
The next plaintiff's moving trees and movement are examined as the grounds of appeal by the attorney.
The judgment on the first ground for appeal
As alleged by the plaintiffs, the court below rejected the timely evidence in the original judgment, which seems that the defendant Lee Dong-hun forged a document required for the registration of transfer of such Lee Jong-kon and that the real estate was registered in the name of the same defendant and the defendant Lee Jong-kon, and there is no error in law in recognizing the fact that the non-party was donated the real estate to the defendants at the time of the non-party Lee Jong-kon's survival by other evidence, and there is no error in the misapprehension of legal choice of evidence preparation by the court below, and there
The judgment on the second ground for appeal
According to Article 1008 of the Civil Code, in cases where a person who received the donation of property from an inheritee exceeds his/her share of inheritance, the excess portion is not required to be returned. Therefore, there is no reason to argue that there is an obligation to return as an opposing opinion the portion exceeding the share of inheritance of inheritance
Therefore, it is so decided as per Disposition by the assent of all participating Justices.
Justices Han Sung-dong (Presiding Judge) of the Supreme Court