[건물명도청구사건][고집1974민(2),189]
A person of parental authority may designate members of family council for minors.
A person of parental authority may designate members of family council for minors only when the person of parental authority can designate a guardian, and a mother who does not have the same rights and duties as a guardian is not in the position to designate members of family council for minors.
Articles 962 and 912 of the Civil Act
Supreme Court Decision 74Da2002 delivered on January 13, 1976 (Supreme Court Decision 10912 delivered on March 25, 1975) 74Da1998 delivered on March 25, 197 (Supreme Court Decision 23Da133 delivered on March 23, 199; Supreme Court Decision 58(9)789 delivered on January 13, 197; Court Gazette 512No8383 delivered on
Plaintiff
Defendant
Busan District Court (73Gahap291)
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The defendant shall order the plaintiff to 14 square meters in 14 square meters in 14 square meters in 14 square meters in 2nd 9 square meters in 2nd 9 square meters in 4th 14th 14th sabbe in 2nd 9th 9th 4th 14th 7th 7th sabbe in 14th 7th sabbe in 3
The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution
The same shall apply to the order.
The building stated in the purport of the claim is originally owned by Nonparty 1, and he died on February 2, 1972, Nonparty 2 is wife, Nonparty 3 is a woman of birth, Nonparty 4 is the head of the family who is the head of the family, and Nonparty 5 is the head of the family, who is the head of the family, and the joint inheritance of the above building in proportion to 4,2,12, and 4/22 of the shares in accordance with the shares of the Civil Law, and on August 2 of the next year, Nonparty 2 sold his shares to the plaintiff on behalf of Nonparty 4 and 5 as the person with parental authority, and Nonparty 2 and Nonparty 3 sold their shares to the plaintiff on behalf of the plaintiff, and on August 7, 198, the Busan District Court received No. 5709 of Busan District Court received the ownership transfer registration in front of the plaintiff on the ground of the above day sale, and the fact that the defendant currently occupies the part of the building in this case is not a dispute between the parties.
However, without dispute over the establishment of Gap evidence 3 (the statement of non-party 2), Eul evidence 1-2 (the receipt and complaint), Eul evidence 3 (the witness examination record), Eul evidence 8-1, Eul evidence 8-2 (each protocol of examination of non-party 6 and non-party 7), Eul evidence 9 (the original copy of the trial), Eul evidence 11-3 (each notification), Eul evidence 14 (the contents of non-party 14), Eul evidence 9 (the non-party 2's notification), Eul evidence 10 (the non-party's family council's resolution), Eul evidence 10 (the non-party council's resolution), Eul evidence 10 (the non-party 9's resolution), Eul evidence 9 (the non-party 1's testimony) which can be recognized by the testimony of the non-party 8, and Eul evidence 10 (the non-party 2's testimony of non-party 1 and the non-party 2's legal representative, as otherwise alleged in the Civil Act.
The plaintiff's legal representative argues that the above disposition of disposition was valid since the family council designated by the non-party 2 confirmed the above disposition of the non-party 2 on April 17, 1974, when the non-party 2 can designate a minor's family council member, the above disposition of disposition is limited to the time when the person with parental authority can designate a guardian. As seen above, the non-party 2, who did not have the same right and duty as the guardian, as the mother of the non-party 4 and the non-party 5, was in the status of designating a family council member as the person with parental authority who can designate a guardian, cannot be deemed to have been in light of the legal principle, so it cannot be viewed that the non-party 2's act of disposition was confirmed at the designated family council pursuant to Article 962 of the Civil Code. Thus, the plaintiff's complaint cannot be accepted as the validity of the above disposition of the non-party 2's act of disposition in accordance with the above decision of the family council unless there are special circumstances.
In other words, even if Nonparty 2’s disposal of the shares of Nonparty 4 and 3 to the building of this case without the consent of the family council is null and void, the Plaintiff alleged that Nonparty 2’s disposal act belongs to the right of legal representation of the person with parental authority, and thus, Nonparty 2’s disposal act constitutes an expression agent of authority, and thus, the above Nonparty is liable for its own responsibility. However, if Nonparty 2’s disposal act did not conflict with the establishment of the family council, it is obvious that Nonparty 1 was aware that Nonparty 2 was aware of the overall purport of oral argument at the testimony of Nonparty 9, 12 and 11, and that Nonparty 2’s disposal of the above shares was 7 years old, and it was clear that Nonparty 1 was aware that Nonparty 2 was an agent of Nonparty 1 and Nonparty 2’s purchase of the above shares within the scope of 7 years old and 5 years old, considering that Nonparty 2 was not aware of the fact that Nonparty 1 was not aware of the fact that Nonparty 1 was born with Nonparty 1 and Nonparty 2.
Therefore, as long as the legal act of Nonparty 2 was revoked, the registration of transfer of ownership in the name of the Plaintiff as to the shares in the building of Nonparty 4 and 5 is null and void. Accordingly, the Defendant, as the natural father of the above Nonparty, shall be deemed to have legitimately occupied the above building based on the majority shares in the building (total 16/22), and even if the Plaintiff’s claim for the principal lawsuit that led to this case by denying the title of possession, shall be dismissed as without merit. Thus, since the original judgment is unfair on the contrary, the original judgment is revoked in accordance with Article 386 of the Civil Procedure Act, and the burden of litigation costs shall be determined as per Disposition by applying Articles 96 and 89 of the Civil Procedure Act.
Judges Choi Jong-ro (Presiding Judge)