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(영문) 대전고등법원 2019.08.21 2019나11591

제3자이의

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. Basic facts

A. Before May 23, 2015, C and D issued to the Defendant one promissory note with “the date of issuance, May 23, 2015, the addressee, the Defendant, the face value of KRW 150,000,000, and May 23, 2016.” Around June 2, 2016, C and D drafted a notarial deed stating that “A and D are the issuer of the said promissory note, and if C and D are the issuer of the said promissory note, if the payment of the said note is delayed with the holder of the said note, they shall be recognized that there is no objection even if they are immediately subject to compulsory execution” (hereinafter “notarial deed of this case”).

B. As the Defendant did not perform the obligation of promissory notes, on June 14, 2016, upon the instant notarial deed, filed an application for compulsory auction of real estate with the Daejeon District Court’s official branchF on June 15, 2016 on the basis of the instant notarial deed, and received a decision to commence compulsory auction of real estate with respect to co-ownership C and D’s co-ownership among each real estate listed in the separate sheet (Provided, That the area of the real estate listed in paragraph (8) of the attached Table is 9,156 square meters, the area of the real estate listed in paragraph (9) is 286 square meters, and the category and area of the real estate listed in paragraph (13)

[Ground of recognition] Facts without dispute, Gap evidence 4-1, Gap evidence 9-12, the purport of the whole pleadings

2. On March 1, 1929, the Plaintiff, a clan, held title trust with the deceased I as to co-ownership 1/5 of each real estate listed in the separate sheet on March 1, 1929. Since C and D inherited the co-ownership of C and D from the deceased I, the Plaintiff, C and D are in title trust relationship between the Plaintiff, C and D.

Since then, the plaintiff terminated the title trust with respect to C and D, and the defendant is under compulsory execution against C and D's co-ownership of each real estate listed in the separate sheet based on the notarial deed of this case, which is null and void as it constitutes false representation in collusion.

The plaintiff has the right to claim for the transfer of ownership or the right to cancel the transfer of ownership based on the cancellation of title trust to C and D. Therefore, the plaintiff is against the defendant in subrogation of C and D.