[소유권이전등기말소][공1992.6.15.(922),1701]
The case holding that it is not against the principle of good faith or no claim for cancellation of registration by a person who was a co-inheritors due to the death of the father and became a co-inheritors after the death of the third party in the past and after the death of the father does not violate the principle of trust and good faith.
The case holding that since the above title trust contract is clearly effective not only in relation to Gap's father but also in relation to Eul's relationship, since Eul's transfer of ownership in Eul's name is made with the intention of completing the registration of transfer of ownership in his own name before Eul's father's birth and completed the registration of transfer of ownership in Eul's name after Eul's completion of the registration of transfer of ownership in Eul's name, Eul has the registration of transfer of ownership in Eul's name, and Eul again completed the registration of transfer of ownership in Eul's name, Eul's act of completing the registration of transfer of ownership in Eul's name, Eul's act of completing the registration of transfer of ownership in Eul's name, but it is obvious that Eul's act of completing the registration of transfer of ownership in his name can be judged as not only in relation to Eul's father, but also in relation to Eul's relationship with Eul's own father, and therefore, it is not reasonable to deny Eul's registration of transfer of ownership in its name in accordance with the substantive legal relationship within Gap's share of inheritance.
Articles 2, 135, and 186 of the Civil Act
Plaintiff 1 and 5 others, Counsel for the plaintiff-appellant-appellee
Defendant 1 and one other, Defendants et al., Counsel for the plaintiff-appellant-appellee)
Suwon District Court Decision 91Na770 delivered on July 9, 1991
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
1. Determination on Defendant 1’s ground of appeal No. 1 by Justice Kim Jong-sik, Counsel for the defendant-appellant
On June 2, 1987, the court below recognized that the plaintiff 1, the head of the deceased non-party, who was the deceased's son, suffered from disease on the real estate of this case, as the intention to complete the registration of ownership transfer under his own name before the birth of the above deceased, and the defendant 2 would complete the registration of ownership transfer in his own name and again follow the recommendation that he will transfer the registration of ownership transfer in his future. On January 1, 1986, he had his seal imprint and completed the registration of ownership transfer from the above deceased's name under the name of defendant 2. The court below recognized that the defendant 2 again completed the registration of ownership transfer under the name of the above deceased's 1. The judgment of the court below is just in light of the evidence relations stated by the court below, and it cannot be viewed that there was an error of law by misapprehending the facts against the rules of evidence, such as the theory of lawsuit, and it cannot be accepted as it did not err in the judgment of the court below.
2. Determination on the ground of appeal No. 2
In sum, the theory is in short, since the registration of transfer of ownership in Defendant 2’s name is based on the title trust agreement between Plaintiff 1 and Defendant 2, who is the agent of the above deceased, and even if the above registration in the name of the Defendants is null and void in relation to the above deceased’s relationship, insofar as the above deceased’s death and the plaintiffs inherited the instant real estate, it would be contrary to the legal rules of the Geumcheon-do, or the principle of good faith to claim the cancellation of the registration against Defendant 1, who purchased the instant real estate from Defendant 2, the title trustee, and completed the registration of transfer of ownership.
However, even if Plaintiff 1’s act of completing the registration of ownership transfer with respect to the real estate in this case to Defendant 2 can be deemed as an act of unauthorized representation as in theory, in light of the judgment of the court below as to the circumstances leading up to such act, it is obvious that Defendant 2 was aware of the absence of authority, and the above title trust agreement cannot be effective not only in relation to the above deceased, but also in relation to Plaintiff 1. Thus, it is obvious that Plaintiff 1 received the above deceased’s rights and obligations succession, and it cannot be said that the above title trust registration with Defendant 2’s above cannot be converted to an effective registration consistent with the substantive rights and obligations within the scope of Plaintiff 1’s share in inheritance. In addition, it cannot be denied that Plaintiff 1 is also liable with respect to the completion of the registration of ownership transfer with respect to Defendant 2’s invalid title trust registration. However, as long as the facts established by the court below, it cannot be concluded that Plaintiff 1’s claim for cancellation of the ownership transfer based on the registration null and void is against the principle of trust or good faith.
Therefore, the judgment of the court below which accepted the claim of this case, which held that the plaintiffs, who are the inheritors of the above deceased, completed the registration of ownership transfer in Defendant 2 without the grounds for registration, and completed the registration of ownership transfer registration based on this registration, constituted an error of law by misapprehending the legal principles like the theory of lawsuit, and thus, we cannot accept the conclusion of the judgment.
3. Determination on Defendant 2’s appeal
In addition, the grounds for appeal were not stated in the petition of appeal filed by the above defendant's Park Jong-chul, and since the above defendant or his/her attorney did not submit the appellate brief, it is not possible to dismiss the above defendant's appeal by judgment without holding any pleadings pursuant to Article 399 of the Civil Procedure Act.
4. Therefore, all appeals by the Defendants are dismissed, and the costs of appeal are assessed against the Defendants who have lost them. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Jae-ho (Presiding Justice)