[손해배상등청구사건][고집1982(민사편),26]
Whether the State is liable in cases where the court administrative officer or clerk reissues an original of the final and conclusive judgment in favor of cancellation of registration of ownership preservation without permission of the presiding judge.
An application for registration based on a final and conclusive judgment rendered in a lawsuit ordering a declaration of intention, such as a lawsuit seeking cancellation of registration of ownership preservation, is a broad executory issue, and it does not mean a usual compulsory execution, and in the case of a favorable judgment in the same lawsuit, the re-issuance of the original judgment is possible without permission of the presiding judge. Therefore, it cannot be deemed unlawful because the original copy of the judgment was reissued without permission of the presiding judge, and thus, the State is not liable for damages therefrom.
Article 485 of the Civil Procedure Act, Article 2 of the State Compensation Act
Plaintiff
Defendant 1 and two others
Defendant 4 and two others
Seoul Civil History District Court (80 Gohap1636)
1. The part on Defendant 1, 2, 3, 4, and 5 in the original judgment shall be modified as follows:
The above Defendants jointly and severally pay to the Plaintiff 22,005,800 won with an annual interest rate of 5% from December 14, 1977 to the date of full payment.
2. Revocation of the part of the original judgment against the defendant Republic of Korea, and the plaintiff's claim concerning the revocation shall be dismissed;
3. The appeal filed by the defendant 4 and 5 is dismissed.
4. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Republic of Korea is assessed against the Plaintiff. The part arising between the Plaintiff and the remaining Defendants is assessed against the Plaintiff, and the remainder is assessed against the Plaintiff and the same Defendants.
5. The above paragraph (1) can be provisionally executed.
The plaintiff jointly and severally pays to the plaintiff the amount of KRW 37,409,00 and the amount of KRW 5% per annum from February 3, 1981 to the date of full payment.
The costs of the lawsuit are assessed against the defendants, and the sentence of provisional execution is sought, and the defendant reduces the claim in the trial (However, the damages for delay shall be extended rather than the damages for delay) and jointly pays to the plaintiff an amount equivalent to five percent per annum from December 14, 197 to the date of full payment.
The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.
(Purpose of Plaintiff’s Appeal)
The original judgment is modified, and the same judgment as the purport of the claim that has been modified in the trial is sought.
(Defendant 4, 5, and each appeal by the Republic of Korea)
The above part of the original judgment against each defendant shall be revoked, and the plaintiff's claim against each of the revocation shall be dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
(1) Judgment on the main defense of this case is examined.
Defendant 4 defenses that the lawsuit of this case, which is a subsequent suit, is unlawful as it is identical to the lawsuit of this case filed by the party member 79Na2212, and thus, the lawsuit of this case is brought against Defendant 1, 2, and 3 on behalf of Defendant 1, 2, and 19, and thus, Defendant 4 seeks compensation for damages arising from the cause of impossibility of performance of the agreed remuneration obligations. However, according to each of the evidence Nos. 3 (Judgment) and evidence Nos. 17 (Judgment) and 79Na2212, the above party member's defense is not identical to the lawsuit of this case and the above party member 79Na2212, and the defendant's defense is groundless.
Next, Defendant 5 asserted that the lawsuit of this case is unlawful as it is identical to the lawsuit of this case for which the claim for cancellation, etc. of ownership transfer registration is filed by the party member No. 8193. Thus, according to the purport of the statement of evidence No. 20 (written witness examination) and the purport of the oral argument of this case, Defendant 5 seeks performance of the procedure for ownership transfer registration as to the shares of 2/5 of the land listed in the separate sheet according to the in-kind remuneration agreement, which constitutes the cause of the claim of this case, as to the above case, the lawsuit of this case becomes impossible to transfer ownership of 2/5 of the above land, and thus seeking compensation for damages (transfer compensation) since the above lawsuit is not the same, the above defendant's defense is groundless.
(2) First, we examine the Plaintiff’s claims against Defendant 1, 2, 3, and 4.
The above facts are presumed to have been established. Gap evidence 2 (a contract) which is acknowledged to have been established by the preceding purport of the pleading as to the non-party 1's remaining defendant 7's non-party 1's non-party 2's non-party 7's non-party 1's non-party 2's non-party 1's non-party 7's non-party 9's non-party 1's non-party 2's non-party 7's non-party 1's non-party 2's non-party 1's non-party 7's non-party 1's non-party 1's non-party 2's non-party 7's non-party 1's non-party 2's non-party 9's non-party 1's non-party 2's non-party 7's non-party 1's non-party 1's non-party 2's non-party 1's non-party 3's non-party 2's non-party 2's counter-party 1'
Thus, the defendants are obligated to implement the procedure for the registration of ownership transfer with respect to the two-fifths of the shares in the attached list (1) land in accordance with the above repair contract to the plaintiff. The defendants are jointly and severally liable to compensate for damages due to nonperformance, namely, damages due to nonperformance, the market price equivalent to the two-fifths of the shares in the above land at the time of the above disposal.
However, Defendant 4 asserted that the above fee agreement entered into between the plaintiff and defendant 1 et al. is null and void in violation of Article 17 of the Attorney-at-law Act that an attorney-at-law could not acquire the right in dispute, and that the above fee agreement is null and void in violation of Article 17 of the Attorney-at-law Act that the above fee agreement is null and void. However, Article 17 of the Attorney-at-law Act prohibits an attorney-at-law from acquiring the right in dispute and becoming a party by acquiring the right in dispute, and it cannot be deemed null and void even if the attorney-at-law agreed to receive part of the object in dispute with the payment of the case in accordance with the final and conclusive judgment in favor of the case, and the above fee agreement does not show that the above fee agreement is remarkably unfair
Second, Defendant 4 filed a lawsuit seeking cancellation of registration of initial ownership between Defendant 1 and the above non-party 1, etc. against the Seoul High Court on or around March 1975, which is the appellate court, and filed an application for intervention of the independent party because the non-party 5 asserted that the land stated in the attached list, which is the subject matter of claim, was its own ownership, and the lawsuit becomes complicated. The plaintiff's change of the contract for cash fee of KRW 1,00,000 after the winning of the contract and the bonus of KRW 2,00,000 after the winning of the contract were requested to the plaintiff and paid KRW 70,000 as part of the commencement fee pursuant to the revised contract for remuneration, and it is difficult to acknowledge that the plaintiff's remaining evidence No. 7 (No. 9,00,000,000 for the above 70,000 won for the above 70,000 won for the above 7,000 won evidence No. 9,000,00 evidence No. 7 (No. 26,07).
Third, Defendant 4 suffered loss because Defendant 1 et al. did not make a provisional disposition before disposing of the land indicated in the attached list (1). Thus, the plaintiff's claim of this case is unjustifiable. However, the plaintiff did not have a provisional disposition as to the above land, but there is no dispute between the parties, but there is no obligation to make such provisional disposition as to the plaintiff. Thus, the above defendant's claim is without merit.
Therefore, if the amount of damages suffered by the plaintiff was collected from the public health team, the result of the verification by the court below, and the whole purport of the pleadings as a result of appraisal by the final appraiser of the court below, it can be recognized that the land price stated in the attached Table (1) in the attached Table (1) was at least 18,000 won at the ordinary market price of the same land that was disposed of on December 197, and as stated in the evidence No. 8 (certificate) that is contrary to the above recognition, the entry in the evidence No. 14-1, 2, 15, 17, 15, 17, and 23,104, 3, and 4 were not the same as the above recognition, and there is no other evidence to determine the amount of damages due to the above appraisal, and thus, the plaintiff's claim that the above appraisal price was at the time of the above disposal was at least 200,000 won, which should not be known to the plaintiff.
(3) We examine the claims against Defendant 5 and Korea.
(A) No. 3 (No. 1), No. 5 (No. 11), No. 11, and No. 3 (No. 12), No. 20, and No. 18 (No. 20) were recorded in the Seoul High Court’s name and no. 9 (No. 7) and no. 9 (No. 12) were known to the Plaintiff on the land for which the registration of ownership transfer was issued to the non-party 1 and the non-party 1’s non-party 7’s non-party 1’s non-party 7’s non-party 1’s non-party 7’s non-party 1’s non-party 7’s non-party 1’s non-party 1’s non-party 7’s non-party 1’s non-party 1’s non-party 1’s non-party 1’s non-party 7’s non-party 1’s non-party 1’s non-party 1’s non-party 1’s non-party 7’s non-party 1’s non-party 1’s right.
According to the above facts, Defendant 5 is infringed upon Defendant 1, etc. by actively cooperating with Defendant 1, etc. in order to prevent the Plaintiff from performing the claim for the in-kind remuneration in relation to the land listed in the attached list (1) with respect to Defendant 1, etc., and Defendant 5 is jointly and severally liable with the above Defendants to compensate for the damages suffered by the Plaintiff due to the impossibility of receiving the claim for the said in-kind remuneration.
However, Defendant 5 asserted that the claim of this case by the Plaintiff, which is premised on the existence of the spot repair contract, is unfair, since the spot repair contract between Defendant 1, etc. and the Plaintiff was changed to the cash repair contract, but there is no evidence to acknowledge the same assertion by Defendant 4 as stated in the preceding paragraph.
(B) The gist of the Plaintiff’s claim against the Republic of Korea was at a location that may affect the work of granting the original copy of the judgment, while Defendant 5 was supported by Seoul District Court’s preservation. However, the Defendant received an application for reissuance of the original copy of the judgment for Defendant 1 on behalf of Nonparty 7, who was at the time the preservation fraternity requested it to reissue the original copy of the judgment, and Nonparty 7 actively participated in the non-performance of the contract in kind with Defendant 1, etc. without obtaining permission from the presiding judge, thereby infringing on claims. Thus, Defendant 5 and Nonparty 7, who were public officials under his control, are liable to compensate the Plaintiff for damages caused by the tort committed by the non-party 1 and Nonparty 7’s failure to perform the contract in kind with the original copy of the judgment without obtaining permission from the presiding judge, and thus, it cannot be deemed that the act of Defendant 5 substituted the original copy of the judgment itself and it cannot be deemed that it was unlawful for the Plaintiff to reissue the original copy of the judgment without permission from the presiding judge to cancel the judgment’s judgment.
(4) Therefore, Defendant 1, 2, 3, 4, and 5 are jointly and severally liable to the Plaintiff with respect to the above damages of KRW 23,104,80,000, the remainder of KRW 1,099,000, for which the Plaintiff asserts mutual aid by himself, and the above damages for delay in civil law shall be paid at the rate of 5% per annum from December 14, 1977 to the full payment date. The Plaintiff’s claims against the Republic of Korea shall be dismissed without merit. Accordingly, according to the alteration of the purport of the claim at the trial, the parts of Defendant 1,2,3,4,4, and5 in the original judgment as stated in paragraph (1) of this Article shall be modified, and all appeals by Defendant 4,5 shall be dismissed, and since the part of the original judgment against the Defendant was partially accepted by the Plaintiff by concluding the above conclusion, it shall be revoked by applying Article 99 of the Civil Procedure Act and Article 99 of the same Act as to the Defendant’s damages against the same Defendant.
Judges Yoon Young-chul (Presiding Judge) Kim Jong-kung Sho