[소유권이전등기말소청구사건][고집1972민(2),279]
Eligibility for parties in a lawsuit for performance
In a lawsuit for performance, the plaintiff's standing as the party itself is nominal and the decision is added to the judgment of the propriety of the claim. Thus, since the claimant for the right to claim payment is a legitimate defendant and the person alleged as the obligor is a legitimate defendant, if the member of the clan requested the cancellation of ownership registration as an act of preserving the family property, the decision of dismissal shall be dismissed on the ground that the claim for cancellation is not made, and it shall not be dismissed.
Articles 47 and 227 of the Civil Procedure Act
Supreme Court Decision 72Da866 delivered on July 25, 1972 (Daad 10200, Supreme Court Decision 202Du156 delivered on August 23, 1977, Decision 75Da1676 delivered on August 23, 197, Decision 75Da1676 delivered on August 26, 197 (Supreme Court Decision 48(18)789 delivered on July 789, 10264)
Plaintiff 1 and six others
Defendant
Seoul Central District Court (71A16761) in the first instance trial
The original judgment is revoked, and the case is remanded to the Seoul Civil Court.
1. The defendant will implement the procedure for cancelling the registration of transfer of ownership on the ground of sale as of December 29, 1969, which was completed under No. 18446 on December 29, 1969 by the Seoul Civil District Court Decision No. 18446 on December 29, 1969 as to the 1000,000,000 9,000,000,000 10,000,000.
2. The costs of lawsuit shall be borne by the defendant.
In addition to the judgment that the original judgment is revoked, the same judgment as the purport of the claim
It is clear that the plaintiffs, as the grounds for the claim of this case, are the members of the non-party clan clan of the same clan, on the grounds that each registration of ownership transfer in the name of the defendant, which was made as stated in the purport of the claim regarding each of the real estate stated in the purport of the above clan is invalid, and therefore, it is obvious that the court of original judgment, as the preservation of the property of the above clan, seeks procedures for cancellation of each ownership transfer registration against the defendant. Accordingly, since the property of the clan belongs to collective ownership of the clan, the member of the clan, who is the member of the clan, cannot conduct the preservation of the property of the clan under his own name, unless it has gone through a resolution pursuant to the Rules of the clan, and therefore, there is no evidence to find that the plaintiffs had passed a resolution pursuant to the above non-party clan regulations in filing the principal lawsuit, it is clear that the plaintiffs were not qualified to be a party, and that the plaintiff's principal lawsuit is unlawful and dismissed.
However, the standing to sue is an issue of whether a party is valid and appropriate to resolve a dispute in a specific lawsuit, and it is not identical to the plaintiff's claim itself, but in a lawsuit for payment (payment), the plaintiff's eligibility as the party itself, and the decision was added to the decision of propriety of the claim, and thus it is not a separate issue. Thus, the plaintiff's right to claim payment is a legitimate plaintiff and the person asserted as the obligor is the legitimate defendant (see Supreme Court Decision 72Da866 delivered on July 25, 1972). If we look at this issue, it is clear that the plaintiff's principal lawsuit is a lawsuit for payment seeking the implementation of the procedure for cancellation registration against the defendant, and there is no evidence to deem that the plaintiffs lost the right to manage and dispose of the subject matter of the lawsuit in this lawsuit, and therefore, the court below should have determined that the plaintiff's right to claim for cancellation of the plaintiff's property as the plaintiff's right to claim for cancellation of the registration in Seoul, and therefore, it is not reasonable to dismiss the plaintiff's right to claim for cancellation of the above defendant's property.
Judges Kim Young-han (Presiding Judge)