[소유권이전등기말소등][집32(2)민,61;공1984.6.15.(730)878]
(a) The case holding that an agreement to waive the right of repurchase on real estate is a sales contract;
B. Method of determining whether a repurchase right transfer agreement constitutes an unfair legal act
C. The transferee of the repurchase right and deception without notifying the State of the fact of being bound by repurchase when concluding the transfer contract of the repurchase right;
(d) Where a sales contract is concluded at a price lower than the market price as a site for the current status of land and mistake of motive;
A. In light of the fact that the Defendant transferred a redemptive right to real estate to the Nonparty and delivered documents necessary for the registration of transfer of ownership, if the State resells the said real estate again to the Defendant, who is the original owner, the said Nonparty would conclude a repurchase contract under the name of the Defendant and complete the registration of transfer of ownership, and upon completion of the registration of transfer of ownership, the said waiver agreement shall be deemed to be a real estate sales contract.
B. In a case where the transferee of the redemptive right pays the price for repurchase in the name of the transferor under the transfer contract, whether the transfer contract constitutes an unfair legal act should be determined first, depending on whether the sum of the purchase price of the redemptive right paid by the Nonparty to the Defendant and the price of the repurchase real estate paid in lieu of the State was considerably low compared with the market price of the real estate at the time.
C. Even if the State decided to repurchase this real estate to the original owner at the time of the conclusion of the repurchase right transfer contract and the transferee was aware of the fact that the transferee was in the process of repurchase, the transferee is not obligated to notify the repurchase right holder, who is the transferor, and thus, it cannot be deemed that there was a deceptive act on the ground that the transferee did not notify
D. Even if a repurchase right holder concluded a transfer contract at a price lower than the market price because he/she was unaware of the fact that the target real estate is not used as military land at the time of concluding the transfer contract of the repurchase right, and that the State would repurchase the original owner (the repurchase right holder), it cannot be deemed as a mistake in the important part of the decision making, even if it could be a mistake in the motive of the decision making, and it does not constitute an error
A. Article 590/B of the Civil Act. Article 104(c) of the Civil Act. Article 590(c) of the Civil Act. Article 110(d) of the Civil Act
Attorney Park Young-ho, Counsel for the plaintiff-appellant
Defendant 1 and one other Defendants, Defendant 1 et al., Counsel for the defendant-appellant's disease rates and records
Seoul High Court Decision 80Na339 delivered on December 18, 1980
The appeal is dismissed.
The costs of appeal shall be assessed against the defendants.
The defendants' attorney's grounds of appeal are examined.
With respect to No. 1:
In light of the contents of No. 2 (Revocation of Right of Repurchase) as cited by the court below and the delivery of the power of delegation, sale certificate, and certificate of seal impression necessary for the procedure for the registration of ownership transfer by Defendant 1 to Nonparty 1, the agreement for the transfer of Right of Repurchase was concluded in the name of Defendant 1 and the completion of the registration of ownership transfer after the completion of the registration of ownership transfer by entering into a repurchase contract in the name of Defendant 1 and the above Nonparty paid the redemption price in the name of Defendant 1. Therefore, the court below is just in holding that the waiver agreement between Defendant 1 and Nonparty 1 was a sales contract for the original real estate at the original time, and it cannot be said that there was no error in the misapprehension of the rules of evidence or the legal principles on the transfer of Right of Repurchase, such as the theory of lawsuit, in the process of fact-finding.
With respect to the second ground:
As seen above, inasmuch as it is deemed that the contract was a contract for the sale of real estate at the time of original purchase of the instant redemptive right as seen above, the determination of whether the contract constitutes an unfair juristic act shall first be made based on whether the price of the repurchase real estate paid by Nonparty 1 to Defendant 1 in lieu of the State was significantly low compared with the price of KRW 1,098,40 at the time of the instant real estate market price of KRW 2,196,80,000, which is the sum of KRW 1,098,40, which was paid by Nonparty 1 to Defendant 1 in lieu of the State, and the amount of KRW 1,198,40, which was remarkably low compared to the price of the instant real estate market price of KRW 2,196,800, the court below was just in holding that there was no significant imbalance among them for the same reason. In addition, according to the records, Defendant 1 had served as a military officer for 10 years, who was employed for the instant real estate as a military land.
With respect to the third point:
(1) Even if Nonparty 1, the purchaser of the instant real estate, was aware of the fact that the state decided to repurchase the instant real estate to the original owner at the time of concluding the original purchase and sale contract, and was in the process of repurchase, the Nonparty did not have any obligation to notify the fact to Defendant 1, the seller, and the purchaser of the said fact. As such, as in the theory of lawsuit, Nonparty 1, the purchaser, as if Nonparty 1 were the transferor of the repurchase right to the land of 100 square meters, did not err in the misapprehension of facts against the rules of evidence, and there is no violation of the rules of evidence against the rules of evidence. Ultimately, the lower court’s argument that there was a misapprehension of the legal principle as to the cancellation of a legal act by fraud, which rejected Nonparty 1’s claim that there was the above duty of disclosure, and that there was such active deception, was unlawful, and thus, cannot be accepted as it attacks the original judgment on the premise that the lower court
(2) As in theory, Defendant 1’s conclusion of the original purchase and sale contract does not use the instant land as a military unit, and even if it was known that the State would repurchase it to the original owner, it cannot be deemed that there was an error in the important part of the decision-making motive, which may be an error in the decision-making motive, as well as an error in the important part of the legal act.
Therefore, the decision of the court below which rejected the argument of the lawsuit on the same ground is just, and there is no misapprehension of the legal principle as to the cancellation of legal act due to mistake.
With respect to the fourth point:
According to the relevant evidence cited by the court below, the fact-finding that there was an agreement on the intermediate omission registration as stated in its holding is acceptable, and there is no error of law that misleads the facts due to a violation of the rules of evidence.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yoon Il-young (Presiding Justice)