A. Whether there is a benefit of confirmation in a case where the absence of ownership of the other party is sought passively

B. The meaning of the right in a lawsuit for confirmation of non-existence against the registered titleholder on the house register of an unregistered building

(c) If the statements of witnesses and documentary evidence are inconsistent, the legality of the measure denying the probative value of documentary evidence without citing the reasons therefor;

A. If there is a dispute over ownership, seeking confirmation of the absence of ownership by the other party's passive means without seeking confirmation of ownership actively and without seeking confirmation of ownership. However, if there is no ownership in the Plaintiff and the defendant's ownership is denied, there is no benefit of confirmation. However, if there is no ownership in the Plaintiff and the dispute can be resolved by removing the plaintiff's legal status unstable, there is a benefit to seek a passive confirmation of the defendant's ownership.

B. In a case where a building is not registered under the name of the plaintiff or the defendants, it cannot be deemed that the defendants were registered under the name of the plaintiff or the defendants as co-ownership right holder. If the plaintiff seeks confirmation from the purport and cause of the claim that there is no co-ownership right "other rights" to the defendants, and if it appears that the other rights refer to the legal relationship of the defendants with respect to the unregistered building, the court below should clearly determine the existence of other rights and then make it clear.

C. It would be difficult to readily deny the probative value of the documentary evidence before viewing that the testimony of the person who prepared and delivered the document in writing is inconsistent with the content of the document.

(b) Article 126(a) of the Civil Procedure Act; Article 228(c) of the same Act; Article 328(c) of the same Act;

Plaintiff-Appellant Kim Yong-jin, Counsel for plaintiff-appellant

Defendant 1 and one other, Defendants 1 et al., Counsel for the defendant-appellant

Seoul High Court Decision 83Na959 delivered on November 17, 1983

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the ground of appeal No. 1 by the Plaintiff’s attorney.

(1) According to the reasoning of the judgment below, the court below rejected the above claim, on the premise that the plaintiff alone purchased the land and building of this case, and on the premise that each of 1/3 equity rights listed in the name of the defendants on the registry or house registry exist in the defendants. However, in the case of dispute over the ownership, the court below did not seek active confirmation of his own ownership and sought passive confirmation of the other party's ownership, barring any special circumstance.

(2) In general, it is difficult to actively seek confirmation of absence of ownership of the other party without seeking confirmation of ownership in cases where there is a dispute over ownership, and to seek confirmation of absence of ownership of the other party passively cannot be a method of confirmation immediately after fundamental resolution of the dispute over ownership ownership. However, there is no benefit of confirmation. However, if there is no ownership in the Plaintiff and the defendant's ownership is denied, if the dispute can be resolved by eliminating the uncertainty about the legal status of the plaintiff, it is the benefit to seek a passive

According to the records, the plaintiff's ground of appeal is that the plaintiff was the head of the non-party who was the representative of the non-party, and purchased the land and building of this case independently from the new state of the non-party, without any authority, and the above non-party completed the registration of ownership transfer for the land and the registration of the house register for the building in the name of three persons of the plaintiff and the defendants, and thus, it is invalid to seek cancellation of the registration of ownership transfer for 1/3 share transfer and request the defendants to confirm

According to the above argument by the plaintiff, since the defendants' registration of shares 1/3 against the land is null and void, the right to share remains in the non-party present state, which is the original owner, and the plaintiff can only assert that the registration of shares in the name of the defendants is null and void on the ground that the registration of shares in the name of the plaintiff is inconsistent with the substantive rights relations, by subrogation of the present state, which is the above right holder, and in this case, there is a position in which it is not possible to actively claim his/her own rights.

Next, the plaintiff's assertion that the building is not yet registered in the name of the plaintiff or the defendants is clearly recorded in the name of the plaintiff or the defendants, so the defendants cannot be viewed as co-ownership right holder. Thus, in the purport and reason of the claim, the plaintiff seeks confirmation that the defendants have no co-ownership right of 1/3 each of the plaintiff's co-ownership right to the site and the building of this case (see, e.g., Supreme Court Decision 199Du1489, Jun. 15, 1983) and the other right here refers to the relation of the rights of the defendants against the unregistered building. Thus, the court below should have made a decision as to the existence of the interest of the confirmation after asking for what contents of the right is called the other right or by clarifying it.

Ultimately, the judgment of the court below is erroneous in the misapprehension of legal principles as to the benefit of passive confirmation, the non-exercise of right to explanation, and the hearing

2. We also examine the grounds of appeal Nos. 2 through 7.

(1) According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that the Plaintiff purchased the instant site independently, and the Plaintiff’s assertion that the ownership transfer was made in the name of the Defendants without any cause as to shares of 2/3, and that the Plaintiff’s testimony was not reliable, and the Plaintiff’s witness’s testimony was insufficient to recognize the above assertion. Rather, according to the macrocopic evidence, the instant site and building was invested in KRW 6,00,000 even if the Nonparty, who was the Plaintiff’s principal, purchased KRW 2,00,000 from the new state of the Plaintiff, and thus, it is recognized that the Plaintiff and the Defendants completed the registration of ownership transfer in the name of the Plaintiff and the Defendants in the name of the Defendants, which were the Plaintiff’s own children.

(2) However, the court below rejected Gap evidence 4-1, 2 (memo) is a document prepared by the non-party and delivered to the plaintiff. If Gap evidence 4-1 of double evidence 4-1, it is clear that the plaintiff deposited KRW 3,565,00 and KRW 1,850,000 in deposit column and KRW 5,415,00 in deposit column, and it is stated that the defendant 1 deposited KRW 4,60,000 in new state purchase price, KRW 856,890, KRW 125,60, KRW 200, KRW 2000, KRW 5,000, KRW 785,497, KRW 3700, KRW 400, KRW 400, KRW 4000, KRW 700, KRW 4000, KRW 4000, KRW 4000, KRW 200, KRW 4000, KRW 4000, KRW

In light of the purport of a party’s pleading, each of the above mentioned items is 3,565,00 won paid by the Plaintiff and 1,850,000 won paid by Defendant 1, and 5,415,000 won paid by the Plaintiff, and is 370,497 won if it is appropriated for 5,785,497 won as follows: (a) repair expenses; (b) labor expenses; and (c) a partial refund of full-time rent paid by the seller to the current state of the current state of the seller; and (d) there is a shortage of 370,497 won when it is appropriated for 5,785,497 won; and (b) there is a shortage of personnel expenses, water and electricity facilities, housing registration fees; (c) house rent; and (d) deposit money for lease on a deposit basis received by the buyer, which is 2,810,497 won.

However, according to the testimony of the non-party witness who prepared the above evidence Nos. 4-2 of the court below, he stated that the above evidence Nos. 4-1 of the plaintiff Nos. 4-1 of the above evidence Nos. 3,565,00 won should not be paid to the plaintiff if the plaintiff paid the above money, and that the money he would be KRW 1,610,497 as stated in the evidence No. 4-2 of the plaintiff Nos. 4-1 of the above evidence Nos. 4, and that the plaintiff would be KRW 2,00,000,000 for the repair cost and facility cost of his pharmacy and KRW 2,000,000,000 for the above portion of KRW 40-2 of the above evidence No. 4,610,497, the plaintiff's statement that the above part of the plaintiff's security deposit should not be paid to the non-party Nos. 3,565,000 won.

If the statement of the non-party 4-1 and 2 prepared in writing and delivered to the plaintiff is inconsistent with the contents of the above documentary evidence, it is difficult to readily deny the probative value of the above documentary evidence before clarifying what is contradictory reasons. Thus, the court below should have determined the value of the above documentary evidence after clarifying the above facts. However, the court below rejected the above No. 4-1 and No. 2 as evidence against the plaintiff plaintiff's principal. Thus, it cannot be said that there was a lack of sufficient deliberation and determination of the value of evidence.

3. Ultimately, the illegality of the judgment below at issue constitutes the ground for reversal under Article 12(2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, and thus, the judgment of the court below is omitted, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)