[토지인도등·소유권이전등기][공1996.6.15.(12),1704]
Where one of the co-inheritors has divided the real estate by agreement as a sole ownership of another co-inheritors before the registration of transfer has been made after disposing of the real estate by inheritance, such division becomes null and void as an act of anti-social order and the scope thereof.
In a case where one of the co-inheritors sells the real estate to a third party and then before the registration of ownership transfer has been made in the future, the agreement on the division of the inherited property takes effect retrospectively at the time of the commencement of the inheritance, and the third party who has not completed the registration is not a third party whose retroactive effect is limited under the proviso of Article 1015 of the Civil Act. In this case, the agreement on the division of the inherited property takes effect retroactively at the time of the commencement of the inheritance, and the third party who has not completed the registration is not a third party who has already sold the real estate to a third party, even though he was aware of the fact that one of the co-inheritors solely inherited by agreement on the division of the inherited property sells the real estate to the third party before the division is made, and if he actively participated, such agreement on the seller's statutory share in the division of the inherited property constitutes a juristic act contrary to social order under Article 103 of the Civil Act.
Articles 103 and 1015 of the Civil Act
[Plaintiff-Appellant] Plaintiff 1 and 14301 (Gong1990, 144) (Gong1990, 144) and 92Da31514 decided Nov. 24, 1992 (Gong1993, 239) and 94Da2534 decided Feb. 10, 1995 (Gong195, 1284)
Plaintiff (Counterclaim Defendant)
Defendant (Counterclaim Plaintiff)
Suwon District Court Decision 95Na1849, 1856 delivered on November 1, 1995
The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief being filed after the lapse of the period for supplemental appellate brief).
Where one of the co-inheritors sells the real estate to a third party and then the ownership transfer registration has been made by agreement between the seller and other co-inheritors with the content that the real estate shall be owned by one inheritor other than the seller, and where the ownership transfer registration has been made in the future, the agreement on the above inherited property takes effect retroactively at the time of the commencement of the inheritance, and the third party who has not completed the registration is not a third party whose retroactive effect is limited under the proviso of Article 1015 of the Civil Act (see Supreme Court Decision 92Da31514, Nov. 24, 1992). In this case, the agreement on the division of inherited property by agreement on inherited property, even though it is known that one of the co-inheritors independently sold the real estate to a third party before the division is made, and if he actively participated in such agreement, not only induces the seller's breach of trust (or faith) but also induces, aids, or cooperate, the part regarding the legal division of inherited property in the above agreement constitutes a juristic act contrary to social order under Article 103 of the Civil Act.
According to the reasoning of the judgment below, the court below acknowledged the following facts: after the deceased non-party 1 died on or around January 18, 1982, the deceased non-party 1 entered into an agreement on the division of inherited property to be owned independently by the plaintiff (sub-party 2; hereinafter the plaintiff) on November 15, 1991; on the other hand, the ownership transfer registration was made in the name of the plaintiff on November 15, 1991; on the other hand, the non-party 2, the head of the above deceased et al., sold to the defendant (non-party 2; hereinafter the defendant) about 90 square meters of the river site of this case to the defendant around March 1984, and the defendant installed a fish farm and occupied the fish farm at that time, the court below rejected the plaintiff's claim for the removal of the above land in collusion with the above non-party 2, etc. for the purpose of undermining the defendant's sale of the above land, and there is no merit in finding that the plaintiff's claim for removal of ownership transfer.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)