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(영문) 대법원 2016.11.10 2016다216052
근저당권말소
Text

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

Reasons

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

The land prior to the division of this case, as indicated in the judgment of the court below, was registered as co-ownership with a mutual title trust as co-ownership relationship, and E is one of co-owners who completed the registration of ownership transfer with respect to shares 60/514.

E entered into a contract on July 16, 2006 that sells 152.69 square meters of land and 52.21 square meters of land on a single-story house (hereinafter “instant contract”) to the Plaintiffs, while exclusively occupying and using a specific part of 204.8 square meters of land in the judgment of the court below which is larger than the area according to the above registered share ratio, and registered the transfer of ownership on September 29, 2006 with respect to the above 60/514 shares and a single-story house on the ground of sale to the Plaintiffs.

(B) As to approximately 14 square meters not sold among specific parts of 204.8 square meters, E agreed to have the right to purchase at KRW 18 million per square year if he/she won in a lawsuit with other sectional owners.

Meanwhile, before the instant sales contract was concluded, E filed a lawsuit seeking the implementation of the procedure for the transfer of shares ownership due to the completion of the prescriptive acquisition (hereinafter “prior lawsuit”) against other co-owners, etc. regarding the specific portion of the land prior to the instant division, which is equivalent to the share ratio registered in his/her own name, on the grounds of the cancellation of title trust; and the remaining part was rendered a favorable judgment on October 28, 2005.

On September 19, 2006, an appeal by some co-owners, etc. was dismissed, and on January 25, 2007, the above judgment became final and conclusive as the appeal was dismissed.

C. The land before the partition was divided into 19 lots in accordance with the purport of the above final judgment, and the specific portion 204.8 square meters in the above portion became the land after the partition of this case to which the parcel number was assigned as D in the holding of the lower judgment.

Accordingly, the land after the division of this case has become the ownership relationship with the above co-ownership share on the registry, and each of the plaintiffs including the plaintiffs.

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