[소유권이전등기말소청구사건][하집1987(2),180]
Whether double selling constitutes an anti-social legal act
Even if the buyer was aware of the fact that the seller had already sold and received the intermediate payment at the time of purchase of real estate, it cannot be viewed as an anti-social legal act unless the buyer actively solicits the seller to do so.
Article 103 of the Civil Act
[Plaintiff-Appellant] 76Da2083 decided Jan. 11, 197 (Article 103(72) Gong54 Gong9870 decided Apr. 12, 197 (Article 103(74)131 of the Civil Code, Article 232-35)
Kim So-young
Mosan Amsan Cooperatives et al.
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
1. On February 27, 1986 with respect to the real estate stated in the attached list, the Defendant shall implement the procedure for registration of cancellation of ownership transfer registration, which was received from the Jincheon District Court, Jincheon District Court No. 1705.
2. The defendant Tyyang Cooperatives shall pay the plaintiff the amount of KRW 5,00,000,000 from the plaintiff and the amount calculated by deducting the amount of KRW 5,00,000 from July 1, 1986 to the completion of the registration of transfer of ownership of the real estate of this case, and shall execute the registration procedure for transfer of ownership on the real estate stated in the separate sheet for sale on September 9, 1985.
3. The costs of lawsuit are assessed against the defendants.
1. The above evidence Nos. 1-2, 10-3 (Report on Results of Investigation into Home Affairs), 4, 6, 8, 9,10-10 (each of the above evidence Nos. 1-2), 10-3 (construction Contract), 5,78 (each of the above evidence Nos. 12-4, 9, 13-14, 23 (Statement of Witness), 20-14, 20-14, 24, 26 of the above evidence No. 10-2, and 10-5 of the above real estate no dispute over the establishment of the real estate No. 10-2, and 50-3 of the above real estate No. 10-3, 500-3, 10-14, 10-14, 24, 26 of the above evidence No.
2. However, the Plaintiff asserted that the above double sales contract between the Defendant Yang Chang-chul and the Plaintiff on the ground that it was null and void as an anti-social legal act committed by the Defendant, taking part in the act of breach of trust of the Defendant Yang Chang-chul Cooperative. Accordingly, according to the evidence as seen above, the Plaintiff had been aware at the time of double purchase of the instant real estate, that the Plaintiff had already purchased the instant real estate and paid the intermediate payment to the Plaintiff at the time of double purchase, but it was difficult for the Plaintiff to implement the sales contract with the Plaintiff due to the failure to repay the provisional attachment, mortgage, etc. on the instant real estate due to the Plaintiff’s failure to pay back the said real estate at the time of double purchase of the instant real estate, even if it was known that the Defendant had the intention to purchase the instant real estate at a lower price than the Plaintiff, the above contract with the Plaintiff was concluded with the Plaintiff on the ground that there was no evidence to support the double sale of the instant real estate or to support the double sale of the instant real estate.
3. If so, the above sales contract between the defendant Yang-soo and the defendant Yang-soo on the real estate of this case does not have any evidence to deem that the contract was actively involved in the act of breach of trust by the defendant Yang-soo Cooperative. Thus, it is difficult to view it as an invalid contract which is contrary to social order. Thus, the plaintiff's claim of this case premised on the invalidity of the above sales contract as to the remaining points is groundless, and it is all dismissed, and the costs of lawsuit are assessed against the plaintiff who lost.
Judges Kim Chang-song (Presiding Judge)