[소유권이전등기말소청구사건][고집1973민(2), 270]
Where withdrawal of an appeal is deemed to have been made because the party concerned was not present on the date for pleading due to any cause not attributable to him, the case holding that the application for designating
Since approximately 35 households live in the place where the plaintiff's domicile is located, and it is recognized that there is little fact that the mailman failed to deliver the mail on the date of pleading because he/she was unable to find the mail receiver residing in the above place of destination. Therefore, it is clear that the plaintiff's appeal is deemed to have been withdrawn because he/she was unable to attend on the date of pleading due to a cause not attributable to
Article 241 of the Civil Procedure Act
Supreme Court Decision 76Da1656 delivered on January 11, 197 (Article 241 (24), Article 247 of the Civil Procedure Act, Article 554No9869 delivered on January 11, 197)
Plaintiff
Defendant 1 and three others
Sung Dong-dong branch of Seoul District Court (71Gahap96) in the first instance court
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
As to the plaintiff, the defendant 1 consented to the procedure for the recovery registration of provisional registration that was cancelled on July 10, 1970 due to the cancellation of the reservation on July 22, 1969, No. 42385, Nov. 20, 1969; and the procedure for the preservation of ownership transfer by promise on Nov. 20, 1969; the defendant 2, 3, 4 consented to the procedure for the recovery registration of provisional registration in order to preserve the right to claim; the defendant 2, 3, 5, 5, 6, 23136, 23136, 411, 481, 196, which was cancelled on June 5, 1970 due to the cancellation of the promise on May 29, 1970; and
Litigation costs shall be borne by the defendants.
The original judgment shall be revoked, and the same judgment as the purport of the claim
(1) According to the examination of the plaintiff's application for the designation of the date of pleading, first of all, the party members served a writ of summons for the first day of pleading designated on the plaintiff's registry (detailed address 1 omitted)-17 September 29, 1972, which is the plaintiff's domicile on the plaintiff's registry. However, although a mailman was unable to serve a writ of summons for the second day of pleading-dong, Seongdong-gu, Seoul, which is the plaintiff's domicile, even though he was asked within his address, it became impossible for the plaintiff to serve a writ of summons for the second day of pleading-dong, Seoul, Seongdong-gu, Seoul, which is the plaintiff's domicile, on October 13, 1972, the party members again served the plaintiff as the date of pleading for the second day of pleading-dong, Seongdong-gu, Seoul, which is the plaintiff's domicile, with the fact that the plaintiff was unable to serve a letter of summons for the second day of pleading on October 13, 1972.
According to the above facts, it is clear that the plaintiff was unable to appear on the date for pleading due to a cause not attributable to him and the appeal is deemed to have been withdrawn. Thus, the plaintiff's application for designation of the above date is reasonable under Article 241 (3) and (4) of the Civil Procedure Act, and the case of the defendant et al. is deemed to have been withdrawn from appeal due to the absence of both parties. Thus, the argument that the appeal should be dismissed is groundless.
(2) On November 22, 1969, with respect to the real estate stated in the separate sheet No. 2 (2), (3), (4), (5), and (6) as to the real estate stated in the separate sheet No. 42385 on November 22, 1969 on the ground of promise to sell or purchase, the provisional registration procedure for preserving the right to transfer of ownership was completed in the name of the plaintiff on November 19 of the same year on the ground of promise to sell or purchase the real estate stated in the separate sheet No. 4381, Dec. 1, 1969; on July 10, 1970, the provisional registration procedure for preserving the right to transfer ownership was completed in the name of the plaintiff; on July 9, 197, the provisional registration No. 29398, and on the real estate stated in the separate sheet No. 2, (2), (3), (4), (5), and (6) the list No. 2,36) of the parties to the provisional registration were cancelled on the real estate.
On May 1970, Nonparty 3, an attorney including the Plaintiff, issued to Nonparty 4 a certificate of provisional registration right to real estate stated in the attached list and a forged document, which is necessary to cancel provisional registration, and subsequently cancelled the above provisional registration under the name of the Plaintiff as stated in the purport of the claim. After Nonparty 2’s cancellation of the above provisional registration, the Defendant asserted that the above provisional registration under the name of the Plaintiff was made in the name of the Defendant et al. for the purpose of following the procedure for restoring the above provisional registration cancelled, the above provisional registration under the name of Nonparty 2 was merely made in the name of the Plaintiff et al. which is the fraud of the Plaintiff, and it is difficult for the Defendant et al. to lawfully cancel the above provisional registration because it is difficult to view that the above provisional registration was made in the name of the Plaintiff et al., the above provisional registration was made in the name of Nonparty 2, which is the form of the above provisional registration under the name of Nonparty 2, and it cannot be acknowledged that the above provisional registration was in the name of Nonparty 17-2 and the above evidence.
However, even if the cancellation of provisional registration in the name of the plaintiff was made illegally as the owner of the real estate in this case, the above provisional registration in the name of the plaintiff for the non-party 2 should be cancelled due to the extinguishment of the secured debt. Thus, the cancellation registration in the name of the plaintiff for the real estate in this case should be valid as it is consistent with the physical relation. Thus, this claim based on the above provisional registration of the plaintiff is groundless, and it is proved that the plaintiff's claim is groundless. Thus, around December 1, 1969, the interest and the due date for payment should be lent to the non-party 2, and the provisional registration for securing the right to claim transfer of ownership, such as the statement in the purport of the claim, was made to the plaintiff as to the real estate in this case as security, and the above provisional registration should be cancelled at the rate of 1,030,000 won for the non-party 4 (Deposit) without dispute. Thus, according to the statement in the above evidence No. 26, the plaintiff et al. shall be acknowledged 10,1901,29.
Therefore, the plaintiff's claim for this case based on the premise that the above provisional registration is valid is groundless even if the above provisional registration is cancelled illegally, so it shall be dismissed. Accordingly, the original judgment, which forms the conclusion, is just, and the plaintiff's appeal is without merit, and it is dismissed pursuant to Article 384 (1) of the Civil Procedure Act, and it is so decided as per Disposition by applying Articles 95 and 89 of the same Act with respect to the burden of appeal costs
Judge Han Man-Sung (Presiding Judge)