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(영문) 대법원 1991. 7. 26. 선고 91다16624 판결

[소유권이전등기][공1991.9.15.(904),2252]

Main Issues

Whether it can be viewed that there exists a private right to preserve against the State merely because it has the expectation from the competent agency that the State is in a position to purchase the State property by a negotiated contract (negative)

Summary of Judgment

It cannot be deemed that there exists a right under the private law to preserve against the State merely with the expectation that the person holding the right to possess the state property with permission for use from the competent authorities has the expectation that he/she will be in a position to purchase it by a free contract.

[Reference Provisions]

Article 404 of the Civil Act

Plaintiff-Appellant

Plaintiff-Appellant Kim Yong-jin, Counsel for plaintiff-appellant

Defendant-Appellee

Law Firm Samcheon-ri et al., Counsel for the defendant

Judgment of the lower court

Seoul Civil District Court Decision 90Na27565 delivered on April 30, 1991

Text

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

Reasons

We examine the grounds of appeal.

In this case where the plaintiff seeks the cancellation of the ownership transfer registration of this case against the defendant on behalf of the State, the court below held that the plaintiff's right to preserve the land of this case is unlawful on the ground that the plaintiff can not be viewed as having any judicial claim against the State in the form of a private contract, and there is no evidence to deem that the plaintiff has any such right to claim against the State, and that there is no evidence to deem that the plaintiff has any such right to claim against the State. Thus, the court below cannot be viewed as having any legal right to preserve the State, and there is no evidence to find the existence of the above right to claim against the State according to the records.

In the end, the decision of the court below to the same purport is just, and there is no error of law such as incomplete deliberation, lack of reasons, and misapprehension of legal principles.

Therefore, the grounds of appeal of the theory related to the object of subrogation cannot be accepted without the need to judge.

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 Park Jong-dong (Presiding Justice)