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(영문) 대법원 2016.10.13 2014다12348

소유권말소등기

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a juristic person or an association which is not a juristic person (hereinafter referred to as "juristic person, etc.") in the litigation procedures waives, recognizes, or compromise a claim as a party and entered in the pleading protocol or the preparatory date for pleading, if there exists any defect in the granting of an authority required for the waiver, recognition, or compromise of such claim, the juristic person, etc. may file a lawsuit for quasi-adjudication against the said protocol of pleading or the preparatory date for pleading, and such quasi-adjudication shall be brought within 30 days from the date on which the juristic person, etc. has become aware of the cause for quasi-adjudication after waiver, recognition

Articles 461, 220, 451(1)3, 456, 64, and 52 of the Civil Procedure Act. In such a case, “the date on which a corporation, etc. becomes aware of the grounds for quasi-examination” is the principle that the period of quasi-examination is in progress from that time on which the representative of the corporation, etc. becomes aware of the grounds for quasi-examination, barring any special circumstance.

However, if the representative of a corporation, etc. has abused his/her authority to waive, recognize, or compromise a claim, which is a ground for quasi-examination, and furthermore, has violated his/her authority to gain his/her own interest or a third party's interest, and the other party knew or could have known such truth, it is difficult to expect that the representative of the corporation, etc. will exercise his/her authority to file quasi-examination due to the conflict between the interests of the corporation, etc. and the representative of the corporation, etc. as well as the interests of the corporation, etc. in relation to the exercise of power of representation which is a ground for quasi-examination.