[소유권이전등기말소][공1992.12.15.(934),3281]
Inheritance relationship in the case where the wife died of a child of the head of a household before the enforcement of the Civil Act without a lineal descendant who will succeed to the head of a household and his/her husband and wife, but the wife died after the enforcement of the Civil Act.
Before the enforcement of the Civil Act, if a child was born to the head of a household before the enforcement of the Civil Act, but the head of a household died without the male who will be a lineal descendant who will succeed to the head of a household and died of his or her wife, and his or her wife temporarily inherited the head of a household and inherited the property, but if he or she died after the enforcement of the Civil Act, he or she would be a co-inheritors, instead of the
Articles 984 and 1000 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990)
Supreme Court Decision 87Meu13 delivered on September 26, 1989 (Gong1989, 1579) 91Da32350 delivered on November 26, 1991 (Gong1992, 296) 92Da7955 delivered on May 222, 1992 (Gong192, 1984)
Plaintiff 1 and two plaintiffs' attorneys Lee Jong-chul, Counsel for the plaintiff-appellant
Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellee-type defendant-appellant
Incheon District Court Decision 91Na2458 delivered on May 22, 1992
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
1. Judgment on the Defendants’ legal representative’ ground of appeal No. 1
The court below determined to the effect that the plaintiffs were the deceased non-party 1's heir as the deceased non-party 2 (Death on October 2, 1958) her mother, who was the original owner of the real estate of this case, as the deceased non-party 1's mother.
In sum, the theory of lawsuit is in short, since the deceased non-party 1, who had been the deceased, died without the male who is a lineal descendant to be the inheritor of the family head, and died in the year 1964, the plaintiffs cannot inherit the ownership of the real estate of this case.
However, even if the inheritance relationship of the deceased non-party 1 is the same as the theory of lawsuit, it is obvious that the plaintiffs were co-inheritors with their offspring as they died after the deceased non-party 3 went into force of the Civil Code. According to the records, the plaintiffs' primary claim of this case includes the purport of claiming the cancellation of the ownership transfer registration of the deceased non-party 4, which was completed without any cause for registration, as the plaintiffs jointly inherited the ownership of the real estate in the position of co-owner who jointly inherited the ownership of the real estate of this case. Thus, even though the plaintiffs did not inherit the ownership of the real estate of this case immediately due to the deceased non-party 1's death, such as the theory of lawsuit, even if the plaintiffs did not inherit the ownership of the real estate of this case, the decision of the court below that the plaintiff's primary claim for the cancellation registration procedure of the ownership transfer registration under the name of the deceased non-party 4 was justifiable as a result of the co-owner
2. Determination on the ground of appeal No. 2
The judgment of the court below on the points out of theory (the fact that the deceased non-party 4 purchased the real estate of this case from the deceased non-party 1, the head of October 1, 1968, and completed the registration of ownership transfer of the real estate of this case, and the defendant's assertion that the deceased non-party 4 acquired the ownership of the real estate of this case by prescription, and that the plaintiff non-party 3-1 was made by fraud or coercion, all of the defendants' assertion that the plaintiff non-party 4 acquired the ownership of the real estate of this case by prescription, is just in the relation of evidence as stated by the judgment of the court below, and there is no violation of the rules of evidence such as the theory of lawsuit.
The issue is ultimately difficult to accept because it is merely merely criticizes the determination of evidence and the recognition of facts belonging to the exclusive jurisdiction of the court below.
3. 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)