[2] Whether a lawsuit of demurrer against a protocol of compromise prior to the filing of a lawsuit is allowed, which contains an expression of intent to transfer ownership (negative)

[3] In fact, it is impossible for a purchaser to complete the registration of ownership transfer by resorting to the protocol prior to the filing of a lawsuit, which contains the seller’s expression of intent to transfer ownership, and where the purchaser actively contests the seller’s cancellation of the sales contract, whether the seller has a benefit in filing a lawsuit against the purchaser to seek a judgment seeking

[2] If a protocol of protocol prior to the filing of a lawsuit containing the expression of intent to transfer ownership is prepared, a lawsuit of objection is not allowed due to the completion of the compulsory execution.

[3] In fact, it is impossible for a buyer to complete the registration of ownership transfer based on the pre-instigation of a lawsuit, the content of which is the declaration of intention of ownership transfer between the seller and the seller. In case where the buyer actively contests the fact that the seller cancels the sales contract, the seller’s seek a judgment seeking confirmation of non-existence of the seller’s obligation to register ownership transfer against the buyer is not only necessary to immediately remove anxiety and danger arising from the seller’s exercise of ownership

2. The costs of lawsuit are assessed against the Defendants.

(a) Conclusion of trading contracts and reconciliation prior to filing of lawsuits;

(1) On April 20, 1990, the Plaintiff sold each real estate listed in the separate sheet to the Defendants (the part of the Defendant’s purchase is specified as indicated in the separate sheet) and received 45 million won as the down payment on the same day, and agreed to receive 200 million won as the intermediate payment on May 15, 1990, and 248 million won as the remainder on June 10 of the same year. (The person who directly entered into the above sale contract was Defendant 1 who represented the Plaintiff and the Defendants)

(2) On June 1, 1990, the Plaintiff and the Defendants settled prior to the filing of the suit in the registration of ownership transfer by Sungwon District Court Sung-nam Branch 90No. 74, as shown in the separate settlement clause, but the contract date was November 20, 198 in order not to go through the procedure for permission for land transaction.

(3) However, since the drawings attached to a settlement protocol prepared pursuant to the above procedures prior to the filing of the lawsuit and the object of the registration prior to the transfer of interest are based on the drawing of the parties, and it is practically impossible to divide each of the above real estate into the above drawings, the Defendants cannot complete the registration of transfer of ownership of the shares they purchased with the specific contents of the above settlement protocol. The Defendants are not able to complete the registration of transfer of ownership in their names until now.

(4) Meanwhile, even if Defendant 1 entered into a sales contract with the Plaintiff, the remaining Defendants were to purchase each of the above real estate at approximately KRW 3.50,000,000, as if they were to purchase it, and Defendant 1 received payment of KRW 646,100,000 in total from the sales price of the above real estate by the end of 190.

(5) Nevertheless, Defendant 1 paid only 45 million won the down payment to the Plaintiff, and embezzled and consumed the remainder of the intermediate payment or the remainder at his own discretion.

B. Cancellation of the above sales contract

(1) On October 28, 1998, the Plaintiff: (a) notified the Defendants of the notice that the intermediate payment and the balance under the said sales contract were not paid by the payment date; (b) provided all necessary documents for the registration of ownership transfer; and (c) sent the notice to the Defendants within 15 days from the date of receipt of the notice to the Defendants; and (d) provided that the said notice was automatically cancelled without other notice of cancellation, if the intermediate payment and the balance are not paid by the said peremptory date.

(2) Defendant 1., 2., and 8-14 received the above notice around that time, but the remaining Defendants did not deliver the above notice due to their unknown address, and the Plaintiff filed an application for the service of public notice pursuant to Article 113 of the Civil Act. Accordingly, this court made a decision on November 23, 1998 on the service of public notice of the statement of intent made by the Defendants as the respondent, thereby serving the rest of the Defendants on the public notice.

(3) Nevertheless, the Defendants did not pay the intermediate payment and the balance under the above sales contract so far.

[Evidence] Recognized Evidence: In the absence of dispute, part of Gap 1, 2, 3-1-14, Gap 4-1, 2, Gap 5-2, Eul 1-1, Eul 1-6, Eul 5-1, Eul 14-1, Eul 5-1, Eul 1-3, and Eul 9, and the whole purport of the pleading.

rejection evidence: 5-1, 1-3 to 9, and 15 parts of each entry

2. Determination:

However, according to the above facts, even if the Defendants received an indication of intent contained in the above notice or notice, and there was an obligation to register the transfer of ownership in the settlement protocol prior to the filing of the lawsuit, it does not conflict with the res judicata effect of the settlement prior to the filing of the lawsuit, and thus, the Plaintiff’s claim of this case based on the Defendants’ claim for rescission of the contract based on the discharge of obligation arising after the settlement prior to the filing of the lawsuit does not conflict with the res judicata effect of the settlement prior to the filing of the lawsuit.

In addition, since the above settlement protocol is the content of the expression of intent to transfer ownership, so if the settlement protocol is prepared, the enforcement of the protocol is completed, and thus, the lawsuit of objection is not allowed, and it is practically impossible for the Defendants to complete the registration of transfer of ownership due to the above settlement protocol, and at present, the Defendants are actively disputing the fact of cancellation of the above contract. In such a case, it is necessary for the Plaintiff to seek the judgment against the Defendants as to the claim in this case to immediately remove anxiety, risks due to the Plaintiff’s exercise of ownership, as well as the most appropriate means to remove such apprehension, risks.

Therefore, due to the cancellation of the above sales contract, the Plaintiff did not have a duty to register the transfer of ownership in the order with the Defendants, and there is a benefit of confirmation as seen earlier.

3. Judgment on the defendants' assertion

The Defendants asserted that Defendant 1 entered into the above sales contract as the Plaintiff’s agent and received the payment for the remaining Defendants in the same qualification, and that Defendant 1 confirmed Defendant 1’s act of acting as proxy even if not recognized as the Plaintiff’s right of representation. However, as shown in the above argument, some of the indications in Gap 5-1, Eul 3-1 through 3-9, and Eul 15 are not trusted, and there is no other evidence to acknowledge it. Thus, all of the above arguments are without merit (from the evidence Nos. 1 to 3 of Eul 3 to the evidence Nos. 8, the statement as shown by Defendant 1 as the Plaintiff’s agent and the documents with the Plaintiff’s seal affixed, but according to the evidence not rejected earlier, Defendant 1 made the contract or receipt as if he was in the Plaintiff’s agent status, and made the above seal, and affixed it to Defendant 1’s remaining documents.)

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of the reasons.

Judges Lee Sung-sung(Presiding Judge)