2013da81255 Cancellation, etc. of ownership transfer registration

1. The New Bank of Korea;

2. A;

4. C.

5. D;

6. E.

Appellant

3. B

Appellee

Co., Ltd.

Seoul High Court Decision 2010Na99899 Decided October 2, 2013

December 10, 2015

The part of the lower judgment against the Defendant regarding the second preliminary claim by the Plaintiffs is reversed, and that part of the case is remanded to the Seoul High Court.

The dismissal of the plaintiff B's incidental appeal shall be dismissed.

The plaintiff B shall bear the incidental expenses.

1. The defendant's grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. The court below, based on its stated reasoning, on the premise that the defendant is obligated to implement the procedure for the registration of ownership transfer as to the shares of the land that were not transferred to the plaintiffs, the transfer of the remaining shares of the land that the joint defendant F reconstruction Association of the court below (hereinafter referred to as the "original co-defendant reconstruction Association")

The defendant's assertion that there was no cause attributable to the defendant's failure to perform his/her duty to transfer ownership to the plaintiffs, and that there was no share in the land that remains in the future of the defendant since the lawsuit seeking a compromise was terminated by the decision of recommending reconciliation and the registration of ownership transfer was made in accordance with the decision of recommending reconciliation, and therefore there was no share in the land that remains in the future of the defendant.

B. According to the reasoning of the judgment below and the record, in order to promote the reconstruction project of the apartment of this case around 2003, the owners of the apartment of this case filed a lawsuit as to the partition of co-owned property as to the building of this case against the owners of this case including the plaintiffs, etc. (2) in the lawsuit as to the partition of co-owned property as to the building site of this case, ① the owners of commercial buildings have to add 286.12 as to the site area of the building site in 745.04 which was established as the site area at the time of parcelling-out. ② The apartment owners' share of the building site for the co-owned property of this case remains in the name of the defendant without transferring the site area for the co-owned property of this case, and the remaining share of the defendant's land as to the above co-owned property of this case remains in the name of the 40th unit, and there is no need to recognize the additional co-owned share of the defendant's non-owned property of this case as to the remaining co-owned property of this case.

In addition, the following circumstances are as follows: ① The defendant, as the contractor of the apartment building in this case and the building site newly constructed around 1980, calculated the sale area and the share of the building site proportional thereto at the time of sale; ② the seller of the building in this case completed the registration of ownership transfer as to the section for exclusive use and the share of the building site; ② the registration of ownership transfer as to the building site's share of the building site is completed until 1987, and the land's share of the building site is less than the share of the building site's share proportional to the sale area. (However, the plaintiff C's share of the building site was generated in the process of belonging to the same person after the sale of the building site.) The defendant's share of the building site in this case, which is the owner of the above building site, should not be divided into the remaining share of the building site's share of the building site, and the defendant's remaining share of the building site's remaining share of the building site should not be claimed separately among the owners of the building site in this case.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the Defendant still is liable for damages suffered by the Plaintiffs due to nonperformance of the procedure on the premise that the Defendant is still liable for the registration of ownership transfer regarding the unpaid site shares. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of conciliation of partition of co-owned property and liability for damages due to nonperformance of performance, thereby adversely affecting the conclusion of the judgment. The allegation contained in

2. We examine ex officio the legitimacy of the Plaintiff B’s incidental appeal.

The time limit for filing an incidental appeal ought to be deemed to be until the time when the time limit for filing an appellate brief corresponding to the time of closing argument in the appellate trial expires (see, e.g., Supreme Court Decision 2006Da10439, Apr. 12, 2007). According to the records, it is apparent that Plaintiff B filed an incidental appeal after the lapse of 20 days from the date on which the notice of receipt of the record of filing the appeal was served on the appellant, and thus, Plaintiff B’s incidental appeal of this case is unlawful and cannot correct the deficiency

3. Conclusion

Therefore, among the judgment of the court below, the part against the defendant as to the second preliminary claim of the plaintiffs is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the appeal against the plaintiff B is dismissed, and the costs of appeal are borne by the plaintiff B. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Yong-deok

Justices Kim Jae-han

Chief Justice Kim Jong-il