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(영문) 서울고법 1978. 8. 23. 선고 78나477 제4민사부판결 : 상고

[소유권이전등기말소등청구사건][고집1978민,441]

Main Issues

The measure of the appellate court against the rejection of the fixed date even though the withdrawal of the lawsuit is inappropriate;

Summary of Judgment

Since it is null and void because it is illegal by a person without legitimate power of representation, it shall be remanded to the original court for the purpose of designating the date of this case.

[Reference Provisions]

Article 388 of the Civil Procedure Act

Plaintiff and appellant

The Korea Vocational Technical School Establishment Committee

Defendant, Appellant

Gu Youngology et al. and 21 others

Judgment of the lower court

Seoul Central District Court (73 Ga3090) in the first instance trial

Text

The original judgment shall be revoked.

The case is remanded to Seoul Civil District Court Panel Division.

Purport of claim

With respect to the plaintiff, as to the first 3 11 o-one o-one o-one o-one o-one o-one o-dong, Seongdong-gu, Seoul Metropolitan Government

Defendant (1) On December 30, 1967, of receipt by the Sung-dong Office of Seoul Special Metropolitan City, Sung-dong District Court, the registration of partial transfer of ownership in 078, 13078, and 9078, the purpose of which was December 13, 1961; the registration of partial transfer of ownership in 078, for sale and purchase of part of the national shares; the registration of partial transfer of ownership in 13078, as of March 30, 1965, for the purpose of 13078, as of March 30, 1965; the registration of partial transfer of co-ownership in 9667, as of the same day; the registration of partial transfer of co-ownership in 13078,9078, and the procedure for recovery and sale of the shares in 1307,206,7167, and the procedure for the registration of partial transfer of co-ownership in 1467,1967.7

2. Defendant (1) Registration of transfer based on the sale and purchase of shares in the Korea Vocational Technical School established Committee (hereinafter 3922/3941) which was completed on June 17, 1968 by the above registry office as of November 7, 1965, for the purpose of 3941 pro rata 3922 (hereinafter 392/3941), and registration of transfer based on the sale and purchase of shares in the Korea Vocational Technical School established Committee (hereinafter 392/3941) which was completed by the above registry office No. 1838 of the same day, for the purpose of March 30, 1965 as of March 30, 1965, under the name of the Korea Vocational Technical School Establishment Committee established by the above registry office, and under the name of the Korea Vocational Technical School established Committee established by the same registry office, for the purpose of 392/3941 of Dec. 13, 1961.

Defendant (2) The registration of the transfer on the ground of the sale of shares in the old school, which was completed on September 13, 1968 by the above registry office No. 28853, Aug. 3, 1968;

Defendant (3) The former Chuncheon is a provisional registration that was made on the ground of preserving the right to claim a transfer of ownership due to the purchase and sale reservation of 110 out of the equity interests in the 3922/3941 literature as of September 23, 1968, which was completed by the said registry office on September 24, 1968, and the registration of a transfer for the said purpose as of September 23, 1968, which was completed by No. 10829, Apr. 15, 1969;

(4) The defendant Kim Jong-dong's provisional registration that was made on the ground of preserving the right to claim transfer of ownership due to the purchase and sale reservation of 200 out of the interests in the 3922/3941 literature of December 30, 1968, which was completed on December 31, 1968 by the above registry office as of December 30, 1968, as of December 30, 1968, as of December 30, 1968, as of December 30, 1968, as of September 11, 1969;

(5) The defendant Kim Young-gu's transfer registration based on the sale of 560 of the shares in the 392/3941 literature No. 12, Feb. 12, 1969, which was completed by the above registry office on February 20, 1969;

Defendant (6) the transfer registration based on the sale of 100 of the shares in the 1969 No. 5544 of the above registry office’s receipt of the transfer registration for the purpose of February 24, 1969, which was completed on February 27, 1969;

Defendant (7) An interference with the registration of transfer due to the sale of 50 of the No. 13367 of the said registry office’s receipt on April 14, 1969 with the purpose of 3262/3941 of the No. 50 of the No. 13367 of the said registry office’s receipt;

Defendant (8) The registration of transfer due to the sale of 1,400 of the shares in the 3212/3941 literature for the purpose of July 25, 1969, which was completed by the above registry office No. 25301, Jul. 28, 1969;

Upon completion of the defendant (9) the registration of transfer due to the sale of 630 of the shares in the 1812/3941 literature for the purpose of July 30, 1969, which was completed by the above registry office No. 25998 of Aug. 1, 1969, and the registration of transfer due to the sale of 40 of the shares in the Kim Dong-dong Kim Jong-dong, which was completed by No. 43800 of Dec. 1, 1969, for the purpose of November 4, 1969;

Defendant (10) The transfer registration based on the sale of 113 out of the shares in the Kim Young-gu, for the purpose of January 9, 1970, which was completed on January 16, 1970 by the above registry office No. 912, Jan. 16, 1970;

Defendant (11) the registration of transfer due to the sale of 79 out of the shares in Kim Young-gu as of January 19, 1970, which was completed on January 16, 1970 by the above registration office No. 913 of the receipt of the above registration office;

Defendant (12) The registration of transfer on the ground of a sale of 100 out of the 100 shares of the 368/3941 Kim Young-gu, which was completed on January 16, 1970 by the above registration office No. 914 of the receipt of the above registration office;

Defendant (13) The registration of transfer due to the sale of 200 of the shares in the 1182/3941 literacy as of August 1, 1969, which was completed on January 28, 1970 by the above registry office No. 2252 of the receipt of the above registry;

Defendant (14) The transfer registration based on the sale of 168 out of the shares in Kim Young-gu as of January 29, 1970, which was completed on February 4, 1970 by the above registry office No. 3410, Feb. 4, 1970;

Defendant (15) For the purpose of 1970, Apr. 23, 1970, which was completed by the above registry office No. 19733 of May 16, 1970, for the purpose of 200/3941, for the purpose of 40 of the share in the completion of 200/3941, and for the purpose of preserving the right to demand a transfer of ownership due to a promise of 40 of the share in the acquisition of the above registry office, and for the purpose of 40/3941 of the total share in the completion of 40/3941, for the purpose of 1970;

Defendant (16) Transfer registration based on the sale of shares in completion of the 630/3941 for the purpose of June 15, 1970, which was completed on June 26, 1970 by the above registry office No. 26616 of the receipt of the above registry;

Defendant (17) The registration of transfer due to 80 of the 160/3941 Kim Jong-dong shares for the purpose of March 10, 1971, which was completed on March 13, 1971 by the above registry office No. 9490;

Defendant (18) The registration of transfer based on the sale of shares in the Kim Jong-dong for the purpose of March 10, 1971, which was completed on March 13, 1971 by the above registry office No. 9491, and the registration of transfer based on the sale of shares in the original 80/3941, which was completed on May 3, 1971 by the above registry office No. 1981, May 1, 1971;

Defendant (19) The registration of transfer of yellow sewage due to the sale of 672 of the shares in the 14th of October 14, 1971, which was completed on October 18, 1971 by the said registry office, pursuant to No. 45904 of the said registry office;

Defendant (20) The registration of transfer due to the sale of 100 out of the shares in the Kim Young-gu, 560/3941, which was completed on December 30, 1971 by the above registry office No. 52544, Dec. 29, 1971;

Defendant (21) The order of the transfer registration for the sale of 30 shares of sulfur sewage, which was completed on March 20, 1973 by the above registry office No. 4998, for the purpose of March 19, 1973;

Defendant (22) The provisional registration that was made on the ground of the preservation of the right to claim ownership transfer due to the reservation of purchase and sale of shares of 100/3941 for the purpose of May 31, 1973, which was completed on June 1, 1973 by the above registry office No. 11241;

Of each registration, 3941-3922 of 3941-3922, 1622 (Rate 0.41356) the registration procedure for cancellation of the part of the plaintiff's shares shall be implemented respectively.

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

Purport of appeal

In order to cancel the original judgment and to designate the date for pleading, the judgment is sought to remand the case to the Panel Division of the Seoul Civil and Security District Court.

Reasons

According to the records of this case, the plaintiff's representative was dismissed by the Provisional Committee on October 19, 1974 and was appointed as a new representative, and the court of original judgment submitted an application for change of the plaintiff's representative to the court of original judgment on November 1, 1974, and notified each of the defendants of this case. On March 5, 1975, the new representative withdrawn all the lawsuit against the defendants, and the defendants did not object to this, and thus, it is evident that the plaintiff was dismissed as the withdrawal of the lawsuit.

However, the above order did not have been dismissed from the commission of the plaintiff, and Park Yong-Jan applied for the designation of the date of this case by asserting that the above withdrawal is null and void since it assumes that it is the representative of the plaintiff and the above withdrawal of the lawsuit was made. Therefore, first of all, it is examined whether gambling is a legitimate representative of

Since it is an official document, Gap 6-1,2 (Rules of Fact-finding), Gap 10-12-1, Gap 12-3 (Evidence of Decision), and Gap 13-13 (Written Answer) which is recognized as the authenticity by the result of the examination by the court of original judgment, if the whole purport of the pleadings is combined with the result of the examination of records by the court below, the committee chairperson who is the representative shall be elected (Article 15 of the Rules), the committee chairperson shall convene the committee (Article 17 of the regular committee), the committee shall convene the extraordinary general meeting every 12 months, and the committee shall convene the extraordinary meeting at the request of 2/3 or more, the chairperson shall convene the extraordinary meeting (Article 18 of the Rules), and the committee shall dismiss the application for temporary injunction at the request of the plaintiff 16-4 as the representative of the Seoul High Court, and the committee shall also dismiss the application for temporary injunction at the request of the plaintiff 47-2, 1974.

Therefore, the above extraordinary general meeting, which is held without permission of the court, shall be null and void in light of the express text of Article 70(3) of the Civil Act or the provisions of Article 389 of the Civil Act, and gambling shall not be entitled to represent the plaintiff in the lawsuit of this case as well as in accordance with Article 64 of the Civil Act, since it is against the plaintiff as to the lawsuit of this case. Therefore, the withdrawal of the lawsuit of this case, which is held by Park Yong-hae as the representative of the plaintiff, is null and void since it appears to be a part of the plaintiff, and the plaintiff's application for designation of the date of this case shall be accepted. Thus, the original judgment which differs from this conclusion is unfair, and the appeal shall be revoked with due reason, and it shall be remanded to

Judge Lee Dong-dong (Presiding Judge)