[건물철거등][공1992.12.1.(933),3123]
Whether a contractual party's obligation to transfer ownership under the exchange contract can be deemed to have become impossible to perform if the transfer of ownership is made in the future of the contracting party with respect to the land for exchange after the exchange contract.
If the ownership transfer registration of the target land has been made from the contracting party who is the owner after the contract for the exchange of land, it is reasonable to view that the above contracting party has a special circumstance in which the wife restores ownership of the target land from the wife and the other party can perform the procedure for ownership transfer registration. Therefore, it cannot be said that the obligation for ownership transfer registration under the exchange contract for the target land portion has yet to be determined as impossible.
Article 390 of the Civil Act
Supreme Court Decision 75Da450 Decided July 22, 1975 (Gong1975, 8610) (Gong1989, 1464)
[Defendant-Appellee] Plaintiff 1
Defendant
Msan District Court Decision 89Na3230 delivered on August 20, 1991
The judgment of the court below is reversed, and the case is remanded to Mapo District Court Panel Division.
The grounds of appeal are examined.
According to the reasoning of the judgment of the court below, the court below found that the plaintiff and the defendant agreed to exchange the part of the land in this case owned by the plaintiff on February 20, 1978 and the part of the defendant's 604 square meters prior to the (location omitted) 604 square meters prior to the defendant's ownership, and around that time, they occupied each part of the land for exchange purposes since he he he he accumulated a stone embankment on the boundary line. However, on November 22, 1983, the non-party's ownership transfer registration was completed in the name of the non-party as to the whole 604 square meters prior to the non-party's ownership transfer, and barring any special circumstance, the court below determined that the defendant's obligation to transfer ownership under the above exchange contract against the plaintiff of the plaintiff about the part of the above 4 square meters prior to the above (location omitted) land
However, according to the statement No. 1-7 of the evidence No. 1-7, the above non-party is the defendant's husband at the investigative agency. If the above non-party is the defendant's wife, the defendant can recover ownership of the above part of the land for exchange purpose from the above non-party who is his wife and be able to implement the procedure for the transfer of ownership to the plaintiff. Thus, the defendant's obligation for the transfer registration of ownership under the above exchange contract against the plaintiff for the above part of the land for exchange purpose is not yet confirmed as non-performance.
Nevertheless, the court below's determination that the defendant's obligation to transfer ownership to the plaintiff was omitted in the execution of the obligation to transfer ownership, with the fact that the third party, including the land for the above exchange purpose, has completed the registration of transfer of ownership in the future of the above non-party, which is the third party, including the land for the above exchange purpose, cannot be said to have committed an unlawful act in misunderstanding the legal principles as to the impossibility of the performance of the obligation to transfer ownership registration.
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)