[소유권이전등기말소][공1980.6.15.(634),12809]
The case holding that it was implicitly ratified by an unauthorized representation the procedural acts;
Although a minor directly appointed a defense counsel and had him/her perform the litigation of the first instance, if the legal representative of a minor who is a person with parental authority has appointed a defense counsel and stated the result of the first instance lawsuit without raising any objection in the course of conducting the litigation, it shall be deemed that the litigation is ratified implicitly by an unauthorized representation.
Article 130 of the Civil Act
[Defendant-Appellee] Plaintiff 1 et al.
Attorney Kim Jong-dae, et al., Counsel for the defendant-appellant
Daegu High Court Decision 78Na726 delivered on December 20, 1979
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
As to ground of appeal No. 1:
Since the defendant Lee Tae-sik was a minor at present as of May 28, 1960, it is necessary to appoint a legal representative for litigation in the first instance court of this case, and it is illegal for the defendant to appoint a lawyer directly as a legal representative and perform the litigation of the first instance court.
However, the defendant has the defendant mobile board, who is a legal representative of a person with parental authority, appoint again the legal representative (see, e.g., the power of attorney in the case of 89). The representative's act of litigation at the original court while conducting all the litigation at the original court, and without raising any objection, the result of the lawsuit at the first instance court is deemed to have been stated, and the litigation at the place of argument is not implicitly ratified, and therefore, it is not reasonable to discuss this point (the fact that there is no legal representative's indication in the original judgment is the reason for correction).
As to ground of appeal No. 2:
In light of the record, the court below determined that the real estate at issue in this case was transferred to Nonparty 1, who was a co-defendant of the court below on May 19, 1975 from the Plaintiff’s network records, pursuant to an invalid protocol of compromise, and it is reasonable in light of the record, and the wife who did not accept the claim of ratification or granting of power of representation or the assertion of expression representation alleged by the Defendants
Although there are some parts of the certificate of representation and ratification mentioned above among those mentioned in the paper, it is considered that the court below's exclusive right to believe and believe that the statement of the certificate of representation is not reliable.
In addition, if Nonparty 1 conspired with Nonparty 2, who was well aware of the Plaintiff, had the court prepare a protocol of nullification, and had the court complete it accordingly, and if he was prosecuted due to the forgery of private documents, the false entry of the original copy of a notarial deed, and the crime of uttering and received a final and conclusive judgment of conviction, such fact shall also be respected in civil cases unless there are special circumstances to the contrary, and there is no argument that the court below rejected the defendants' ratification or the claim of delegation of authority based on the above facts, thereby making a mistake of facts in violation of the rules of evidence.
In addition, since the purport of rejecting the Defendants’ assertion on expressive representation is peeped in the reasoning of the original judgment, it cannot be said that there is a deviation from the determination on such assertion.
As to ground of appeal No. 3
In this paper, the date of the preparation of the power of attorney stated in Eul 13,17,33 each subparagraph of the letter of delegation shall be September or May of the same year, 1968, and the real estate in this case shall be deemed as the date of the transfer of ownership to the non-party 1 from the preceding date of the transfer of ownership is about May 19, 1975, and it shall not be deemed that the same power of attorney as mentioned in the same letter of delegation shall continue to exist even at the time of the transfer of ownership as well as at the time of the transfer of ownership. Therefore, we accept the decision of the court below that the court below rejected the assertion for granting the power of attorney in the same purport, and there are some developments leading up to the preparation of the said power of attorney in the criminal case as stated in
In addition, on the ground that Nonparty 2 was well aware of the Plaintiff, it cannot be concluded that the said Nonparty’s unauthorized representation was ratified by the Plaintiff or becomes an expression agent. Therefore, we cannot accept the argument on this point.
Therefore, the defendants' appeals are without merit, and all of them are 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 Yang Byung-ho (Presiding Justice)