2016Da46956 (Counterclaim) Transfer registration based on provisional registration

A

B

(Counterclaim) Judgment

The plaintiff (Counterclaim defendant)'s appeal against the main claim is dismissed.

The costs of appeal against the principal lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the costs of appeal after the appeal against the counterclaim are assessed against the Defendant (Counterclaim Plaintiff).

1. Regarding ground of appeal No. 2

The lower court determined that the evidence submitted by the Plaintiff alone cannot be deemed to have concluded the instant sales contract on the condition that the change in the form and quality of each of the instant land would be suspended, in full view of the following circumstances: (a) the net C paid the sales price immediately after the conclusion of the sales contract; (b) the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) completed all the registration of establishment and provisional registration of establishment of the instant neighboring land in accordance with the terms and conditions of the instant sales contract; and (c) the Plaintiff and the net C planted trees on each of the instant land for changing the form and quality thereof.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on non-in

2. As to the third ground for appeal

A. Where the buyer of a real estate continues to possess the object in delivery, the extinctive prescription of the seller’s right to claim for ownership transfer registration does not run, and the possession here includes not only direct possession but also indirect possession (see, e.g., Supreme Court en banc Decision 76Da148, Nov. 6, 1976; Supreme Court Decision 94Da28468, Feb. 10, 199).

B. In full view of the circumstances stated in its reasoning, the lower court rejected the Plaintiff’s assertion that the claim for ownership transfer registration of each of the instant lands was extinguished by extinctive prescription, on the grounds that: (a) the deceased, the purchaser of each of the instant lands, was delivered each of the instant lands from the Plaintiff by means of possession amendment while entering into the instant sales contract; and (b) it is reasonable to deem that the Plaintiff indirectly occupied each of the instant lands by means of the Plaintiff’s possession by managing each of the instant lands. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds

3. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the relevant legal principles and records, it is just that the court below dismissed the plaintiff's claim on the premise that the defendant (the counter-party, the designated party, the hereinafter referred to as the "defendant") seeking the revocation of the judgment of the court of first instance, which accepted all the claim, includes the purport of demanding the dismissal of the claim on the merits, and there is no violation of the principle

4. As to the fourth ground for appeal

A. In a judgment, the issue of whether the judgment was omitted due to the entry of the conclusion in the text of the judgment in order to clarify the judgment of the court ought to be determined by the entry in the text of the judgment. As such, even if the reasoning for the judgment is explained without merit, the judgment was omitted unless there exist any special circumstances, and if the judgment was omitted, the part of the lawsuit is still pending in that instance, and thus, it does not constitute lawful appeal. Therefore, an appeal on that part is unlawful (see, e.g., Supreme Court Decisions 2004Da24083, Aug. 30, 200; 2004Da8830, 8847, Jun. 14, 2013).

B. According to the records, in the first instance court, the defendant filed a counterclaim with the defendant and the selected parties to the effect that "the plaintiff filed a claim against the defendant for a counterclaim to the effect that "the plaintiff will perform the procedure for the registration of ownership transfer based on the completion of the pre-sale agreement on March 30, 1989, based on the registration of the right to claim a transfer of ownership, which was completed on March 15, 1989 on the part of the shares in the inheritance shares in the attached list of the first instance court among each land of this case." The first instance court did not make any decision as to the defendant's counterclaim, and the court below appealed against the principal lawsuit and the counterclaim on the ground that the defendant's claim for a counterclaim is well-grounded.

C. Examining these facts in light of the legal principles as seen earlier, the first instance court omitted the judgment on the counterclaim by failing to make any judgment on the counterclaim claim by the Defendant. As such, the part on the counterclaim claim is still pending in the first instance court, and the part on the counterclaim claim cannot be the object of legitimate appeal. Therefore, the lower court should have determined that the Defendant’s appeal on the counterclaim claim is unlawful on the ground that the part on the counterclaim claim is still pending in the first instance court.

Nevertheless, the lower court revoked the first instance judgment and accepted the Defendant’s counterclaim on the erroneous premise that the Defendant’s appeal against the counterclaim is lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the omission of judgment and the subject of appeal, thereby adversely affecting the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

5. Conclusion

The part of the judgment of the court below concerning the counterclaim is reversed. Since this part of the case is sufficient for the court to directly judge this case, the defendant's appeal as to this part is dismissed. The plaintiff's appeal as to the claim of the principal lawsuit is dismissed. The costs of appeal as to the principal lawsuit are assessed against the plaintiff, and the costs of appeal as to the counterclaim are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Park Sang-ok

Justices Park Jong-young