[소유권이전등기말소][판례집불게재]
Park Jong-young (Attorney Kim Dong-young, Counsel for the plaintiff-appellant)
Lee Won and one other (Attorney Kim Young-young, Counsel for the plaintiff-appellant)
Seoul High Court Decision 83Na529 delivered on October 26, 1983
Seoul Civil District Court Decision 82Da2499 delivered on December 24, 1982
The litigation for retrial of this case shall be dismissed.
The litigation costs for retrial shall be borne by the plaintiff.
The judgment of the court below is revoked. The defendant (the plaintiff) shall be revoked, and the defendant (the defendant) shall register the cancellation of the ownership transfer registration which was completed as of July 12, 1967 with respect to the 1,1,000 1,000 1,000,000 1,000,0000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.
The judgment subject to a retrial and the judgment of the court below are revoked. The defendant (the defendant) shall be revoked. With respect to the plaintiff (the plaintiff) and the defendant (the defendant) shall implement the procedure for registration of cancellation of ownership transfer registration completed on July 12, 1967 under the receipt No. 25380 on the 8th 4th m3,710 m3,710 m3,000 m36,000 16th 4,000 m3,000 m3,000 m3,000 m3,000 m3,000 m2, 1967 m3,000 m3,000 m3,000 m3,000 m2, 1967. The total costs of litigation shall be borne by the defendant (the defendant).
On December 24, 1982, the plaintiff (the plaintiff) filed a lawsuit against the defendant (the defendant) seeking cancellation of the registration of transfer of ownership in the name of the defendant (the defendant) on the land written in the purport of the claim against the defendant (the defendant), and the judgment against the plaintiff (the plaintiff) was rendered on December 24, 1982. The plaintiff (the plaintiff) appealed as Seoul High Court 83Na529 on October 26, 1983, but the decision was dismissed on October 18, 1983, and the above judgment became final and conclusive on November 18, 1983. The fact that the above judgment became final and conclusive was significant in the party members, and the fact that the 111,331,331 square meters 4-3,710 square meters (the 8,331 square meters) and the 163,710 square meters of forest land in the same lot number and the change was made to the 165-14,250 square meters of forest land register (the 165 square meters).
The plaintiff (the plaintiff) is the cause of the request for retrial of this case, and subparagraph 1 (real estate sales contract) which is admitted as evidence by the judgment subject to retrial is a forged document as a result of the investigation by the government branch office of the Seoul District Prosecutors' Office in the case of forging private document that the plaintiff (the plaintiff) raised against the defendant (the defendant) in the judgment subject to retrial, but it is impossible to obtain a final judgment of conviction for reasons other than lack of evidence due to the lack of right to institute a prosecution due to the expiration of the statute of limitations. Thus, in the judgment subject to retrial where evidence No. 1 of the above Article 422 (1) 6 and the latter part of Article 422 (2) of the Civil Procedure Act is proved to the purport that there is a ground for retrial under the above subparagraph 1 of the judgment subject to retrial, and it is evident that in the judgment subject to retrial, evidence that evidence evidence or added facts against the plaintiff (the plaintiff)'s assertion of the judgment subject to retrial is
Article 426 (3) and (4) of the Civil Procedure Act provides that if the grounds for retrial have arisen before the judgment subject to retrial becomes final and conclusive, no lawsuit shall be instituted if five years have elapsed from the date such grounds arise, and the above period shall be the exclusion period established to prevent legal uncertainty between the parties. Thus, if the facts such as the death of the suspect, the prescription period of the right to institute a public prosecution, and amnesty have arisen before the judgment subject to retrial becomes final and conclusive under the above provision, it shall be calculated from the time such judgment becomes final and conclusive, and five years have passed from the time the lawsuit cannot be instituted again after the expiration of the statute of limitations (the notice of disposition of the case), No. 113, No. 24, No. 25, No. 18, No. 97, No. 97, No. 9, No.
Therefore, the exclusion period of a lawsuit for the retrial of this case shall be from November 18, 1983, which is the date when the judgment for retrial became final and conclusive. Since it is apparent that the plaintiff (the plaintiff) filed a lawsuit for the retrial of this case on May 18, 1990 after the lapse of five years from the date when the judgment for retrial became final and conclusive, the lawsuit for retrial of this case shall be deemed to be an unlawful lawsuit with the lapse of five-year period stipulated in Article 426(3) of the Civil Procedure Act.
Therefore, in a case where there is no assertion from the plaintiff (the plaintiff) on other grounds for retrial, the lawsuit of retrial in this case shall be deemed to be a lawsuit which does not meet the lawful requirements as a lawsuit for retrial. Therefore, the necessity to determine the existence and merits of the grounds for retrial is dismissed, and the costs of retrial shall be assessed against the plaintiff (the plaintiff for retrial) who has lost the costs of retrial.
Judges Kim J-ho (Presiding Judge)