205da 3402. Lawsuits for removal of graves and for delivery of land

205da11496 (Counterclaim) Cancellation of the registration of transfer of ownership

***

Wonju*******

Law Firm**

Attorney**

***

Sungnam City*** *

Attorney**

April 18, 2007

May 16, 2007

1. The Defendant (Counterclaim Plaintiff) against the Plaintiff (Counterclaim Defendant)

(a) Hoju-si ****** * * 7835 square meters of forest land 28,29, 30, 31, 32, 42, 40, 39, and 28, each of which is installed on the part (A) of a grave installed on the part (A) of the same drawing, and 32, 33, 34, 35, 42, and 32 of the same drawing, each of which is successively connected (b) 35, 36, 37, 43, 41, 42, and 35 square meters of a grave installed on the part (A) of a ship, which is located on the part (c) of the same drawing, and each of which is (c) 10 square meters of a map, 37, 39, 341, and 35 square meters of a grave installed on the part (A) of a ship;

(b) In order to connect each point of (i) part 387, (ii) part 387, 33, 34, 35, 42, and 32 of the same map, in the line of order, of which the points of (iii) part 387, 35, 36, 37, 43, 42, and 35 of the same map are successively connected to each point of (iv) part 277, 36, 37, 43, 41, 42, and 35 of the same map, in the line of order, among the parts of (c) description 28, 29, 30, 32, 42, and 785 meters of land; and (d) part 120 meters of the same map are successively connected to each point of (c) description 37,38, 39, 40, 41, and 37.

2. The defendant (Counterclaim plaintiff)'s counterclaim is dismissed.

3. The costs of lawsuit are assessed against the Defendant (Counterclaim Plaintiff) by aggregating the principal lawsuit and the counterclaim.

4. Paragraph 1 can be provisionally executed.

Main Office: Judgment such as the Disposition around

Preliminaryly, the Defendant (Counterclaim Plaintiff, and hereinafter referred to as “Defendant”) from the next day:

'Plaintiff's 50,000,000 won and the same shall be repaid from the day following the delivery of a copy of the complaint.

By the date of the decision to pay 20% interest per annum;

Counterclaim: The plaintiff, as to the defendant, Hoju-si * ***** Forest * 7,853m.

Registration of the principal branch court of a district court and the receipt of January 11, 2001* Ownership transfer registration completed under *

judgment to comply with the cancellation registration procedure

1. Basic facts

A. On November 23, 200, the plaintiff's mother, the plaintiff's mother who was delegated with the right to purchase real estate by the plaintiff *** on the 23th anniversary of the 2000, **************'s representative of the defendant *******************'s contract on the purchase of the 100 million price of the forest in this case). The portion of the graveyard "in the special pharmaceutical paragraph shall be determined by the Chinese-style day and the non-performance contract shall be reversed as well as the payment of high penalty." (However, under the real estate sales contract, the purchaser's mother ******) is indicated in the name of the plaintiff **).

B. According to the above sales contract, the Plaintiff, a representative of the Defendant,** paid the sales price in full to * and completed the registration of transfer of ownership in the name of the Plaintiff on January 11, 2001 with respect to the forest of this case.

C. On the instant forest land, each of the facts indicated in the annexed drawing(s) 28, 29, 30, 31, 32, 42, 40, 39, and 28 is connected with each of (a) a grave (a) installed on the ground of 387 square meters in the same drawing(s) 32, 33, 34, 35, 42, and 32 successively connected each of (b) a part on the ground of 277 square meters in the same drawing(s) connected with each of (c) a grave installed on the ground of 120 square meters in succession, and (a) a grave installed on the ground(s) the same drawing(s) 34, 35, 36, 43, 41, 42, and 35 shall be connected with each of the above (c) a grave installed on the ground(s) 120 meters in the same drawing(s) 37, 38, 39, 414, and 37.

[Ground of Recognition: Facts without dispute; Gap evidence Nos. 1, 3, Eul evidence Nos. 1, 4, and 5; Results of present verification by this Court; appraiser* Results of survey and appraisal * The purport of the whole pleadings)

2. The parties' assertion and judgment

A principal lawsuit and a counterclaim shall be deemed simultaneously.

A. According to the above facts, unless there are special circumstances, the defendant is obligated to excavate each of the graves of this case to the original high court in accordance with the special agreement of the sales contract and deliver the grave part to the original high court.

B. Defendant’s assertion

① The Defendant requested Nonparty *** to trade the forest of this case to Nonparty ** the above ** the sale of the forest of this case to Nonparty **** on December 10, 200, selling the forest of this case to KRW 52 million, and delivered all documents to transfer the registration to the Plaintiff***, but there is no fact that the Plaintiff sold the forest of this case to KRW 100 million. Thus, the registration of transfer of the Plaintiff’s right to file a lawsuit in the name of the Plaintiff on the real estate of this case must be cancelled as the cause of invalidation.

② Even if Nonparty *** had the right to sell the forest of this case on behalf of the Defendant, the true purchaser of the forest of this case ******, and the transfer registration of ownership transfer in the Plaintiff’s name was null and void under Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and thus, the Plaintiff’s claim for transfer of ownership cannot be accepted as a claim by a non-owner of the land.

③ Home Nonparty *** has the right to sell the forest of this case on behalf of the Defendant, and even if the Defendant was the actual purchaser of the high-priced forest, the Defendant did not agree with the Plaintiff to the effect that he would hinder the graveyard, and Nonparty ** did not confer the right to represent the graveyard.

④ Even if an agreement that impedes a family graveyard is valid, the person who has the right to dispose of each of the graves of this case is not the defendant but the father of the defendant**, so the person who has the right to dispose of each of the graves of this case is not able to remove the grave.

C. Determination

① As to whether the Defendant entrusted Nonparty ** with the sale of the instant forest to the Plaintiff

In addition to the overall purport of the pleadings in Gap evidence 1, 6 through 9, Eul evidence 3, witness**, * the non-party * who has been entrusted by the defendant for the sale of the forest of this case to the plaintiff as to the sale of the forest of this case *** The defendant prepared a false sales contract and presented the forest of this case ****** as if he had sold the forest of this case 52 million won to the plaintiff, and 48 million won corresponding to the difference without paying to the defendant, but the plaintiff made payment to the above *** the sale of real estate as purchaser ** the sale of real estate again from the plaintiff * the sale of the forest of this case * the defendant * the sale of the forest of this case * the sale of the forest of this case * the defendant * the sale of the forest of this case * the sale of the forest of this case * the difference in the above part * the defendant * the sale of the sale of the forest of this case * the defendant * the sale of this part *.

② Nonparty ** Whether the instant forest land was title trusted to the Plaintiff

The name of the buyer in the sales contract for the forest land of this case is not the plaintiff but the plaintiff *** the fact that it is the above. However, such circumstance alone ****** is insufficient to deem that the forest land of this case was under title trust to the plaintiff, and there is no other evidence to acknowledge the defendant's assertion, and this part of the defendant's assertion is without merit.

③ As to whether the Defendant conferred upon Nonparty ** the right of representation on a cemetery

Non-party***** * entered into a special agreement with the Plaintiff to the effect that each of the instant graves will be removed from the Plaintiff at the time of concluding the sales contract for the instant woodland, as seen earlier, but in addition to the overall purport of the pleadings, witness***,*,****** entered into a contract to sell the instant grave under the condition that each of the instant graves was restored to this site at the time when the Defendant (or the mother of the Defendant ********) was entrusted with the right to sell the instant woodland. The above facts of recognition are as follows: ***** under the above fact of recognition ** there was no authority to act for the Defendant with respect to the part where the graveyard was removed to this case (in addition, the right to manage and dispose of each of the instant graves* the mother of the Defendant ** the father of the Defendant **).

As to this, the expression agency under Article 126 of the Civil Code has been established, the plaintiff asserts that the defendant has the duty to remove each of the of the of the instant graves and deliver the grave site. Accordingly, the defendant alleged that he had the duty to remove it and deliver it to ***** grant the right to representation on the disposal of the forest of this case to ***** the right to remain in ordinary court or the defendant ******** the witness ********* * * * upon gathering the purport of the entire argument from each of the testimony, the plaintiff's mother ******* the deceased's body ** under the direction and the deceased's office * even if the plaintiff did not have the right to representation on the grave of this case, the plaintiff has the duty to represent the grave of this case * the plaintiff under the special agreement to transfer the grave of this case to * the plaintiff as the right to represent the grave of this case * the plaintiff under the special agreement to transfer the grave of this case.

(4) Whether it is impossible to perform the duty to relocate graves, graves, and graves.

The performance of an obligation is impossible, not simply an absolute and physical impossibility, but a creditor cannot expect the realization of the performance of an obligation in light of the empirical rules or the concept of transaction in the private life.

However, in light of the fact that the defendant comprehensively succeeds to the right to manage and dispose of each of the of the of the graves in this case, it cannot be concluded that the ground for this part of the defendant's assertion is not acceptable (i.e., the defendant's moving of a grave to another grave with his consent *** the father of the defendant, *** the south of the defendant, and the defendant's moving of a grave in this case to another grave with his right to manage and dispose of each of the grave in this case *** the defendant's moving of a grave or ultimately taking over the right to manage and dispose of the grave in this case * as seen earlier, it is difficult to view that the moving of a grave cannot be expected in light of the empirical rule or social norms, and rather, it is reasonable to view that the special agreement can be made until the defendant acquires the right to manage and dispose of the grave in this case and exercises the right to manage and dispose of the grave in this case until the execution of the grave in this case becomes impossible for the plaintiff's moving of the grave in this case.

D. Sub-determination

Therefore, the Defendant accepted the Defendant’s claim in sequence 28, 29, 30, 31, 42, 40, 39, and 28 of the annexed drawings among the forest land of this case to the Plaintiff for the transfer of 34 square meters (B), 35, 36, 37, 41, 42, and 37 of graves installed in the part (A) of graves installed in the same drawing, 32, 33, 34, 45, 42, and 37 of the same drawings, 37 of the same drawings, 34 square meters and 47 of the same drawings, 37 of the same drawings, 34 square meters and 47 of the same drawings, 36, 47 of the same drawings, 37 square meters of the same drawings, 47 of the same plot of land and 37 of the same case, 37 square meters of each of the annexed drawings, 241, 437 of the same plot of land.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the grounds of its reasoning, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

C*