In a case where Gap asserted that Eul purchased shares of the real estate located in Hong Kong from Eul, and Eul's inheritor Byung et al sought the implementation of the procedure for registration of ownership transfer of the real estate shares against Eul and sought confirmation of non-existence of the purchase price payment obligation in the preliminary case, the case holding that Gap's primary claim was filed with a court of the Republic of Korea without international jurisdiction, and that the preliminary claim is unlawful as

In a case where Gap's heir Byung et al. claimed Eul's purchase of shares in the real estate located in Hong Kong against Eul and sought confirmation of non-existence of the purchase price payment obligation, the case holding that, in a case where Eul's heir Byung et al. sought confirmation of non-existence of the purchase price payment obligation against Eul, the lawsuit seeking registration of ownership transfer of the real estate located in a foreign country or its ownership transfer of the real estate located in the foreign country is difficult to acknowledge the substantial relationship with the Republic of Korea, and rather, since the Hong Kong Special Administrative Region in the People's Republic of China, which is the law of the country where the real estate is located, has exclusive international jurisdiction, the lawsuit for the primary claim is filed with a court of the Republic of Korea without international jurisdiction, and it is illegal to file a lawsuit for the execution of the registration procedure of ownership transfer transfer of the real estate share which appears to be the most effective and appropriate means to eliminate the uncertainty and danger

Article 2 of the Private International Act, Article 250 of the Civil Procedure Act

Plaintiff 1, et al., Counsel for the plaintiff 1 and 2, Counsel for the plaintiff-appellant of the deceased non-party 1's lawsuit

Defendant (Law Firm North Eastern Law Office, Attorney Lee Jong-seok, Counsel for defendant-appellant)

Suwon District Court Decision 2012Gahap1015 decided February 15, 2013

December 13, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the court of first instance is revoked. In the first instance, the defendant specified the above real estate on the second apartment of Hong Kong ( Address omitted), the second apartment of the second apartment of Hong Kong ( Address omitted), but this appears to have been incorrect, the defendant will implement the procedure for the registration of ownership transfer based on the sale on October 3, 1992 with respect to the share of 43/261 among the shares of the 43/10 of the 2nd apartment of the second apartment of the second apartment of Hong Kong. In addition, it is confirmed that there is no sales payment obligation against the defendant based on the sales contract between the deceased non-party 1 and the defendant on October 3, 1992.

(The plaintiff's primary and conjunctive claims are deemed to have been amended as above in accordance with the process of the lawsuit).

1. Basic facts

On January 14, 192, 192, the registration of transfer of ownership was completed for Non-party 1, the defendant, the non-party 2, and the non-party 3 to the apartment of the second floor in Hong Kong. Among them, the defendant's share was 43/261 (hereinafter "the share of the real estate in this case"), and Non-party 1 died on May 25, 2013, and the fact that there was plaintiff 1, the plaintiff 2, and the non-party 2, and the non-party 3, the heir of the plaintiff 1, the plaintiff 2, and the non-party 9, did not dispute between the parties, or if the purport of the entire argument is added to the statement in the evidence No. 7, 8, and 9

2. Judgment on the main defense against the main defense

The plaintiffs asserted that the deceased non-party 1 purchased the real estate share of this case from the defendant on October 3, 1992 and sought the implementation of the procedure for ownership transfer registration.

As to this, the defendant asserts that the principal claim part of this case, seeking the implementation of the ownership transfer registration of the real estate shares in Hong Kong, is unlawful, since there is no international jurisdiction in the court of the Republic of Korea.

Article 2(1) of the Private International Act provides that "where a party to a lawsuit or a case in dispute is substantially related to the Republic of Korea, the court shall have the international jurisdiction. In this case, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction in judging the existence or absence of substantial relation." In addition, Article 2(2) provides that "the court shall consider the provisions of the domestic law and consider the existence or absence of the international jurisdiction, and shall fully consider the special nature of the international jurisdiction in light of the purport of the provision of paragraph(1)." Thus, the international jurisdiction shall be determined by investigating the existence of substantial relation in accordance with the basic ideology of ensuring the fairness, propriety, and appropriateness, speed, and economy of the judgment between the parties to the lawsuit as well as personal interests, such as equity, convenience, and predictability, and effectiveness of judgment, as well as the interests of the court or the state, such as the appropriateness, speed, efficiency, and effectiveness of judgment. Whether there is a need to protect any of these diverse interests shall be determined reasonably by taking into account the objective relationship between the suspension of law and the parties, and the actual relationship between the case in dispute (see, etc.).

이러한 법리에 따라 이 사건 주위적 청구 부분의 소의 국제재판관할에 관하여 보건대, 부동산 소유권이전등기를 구하는 등의 부동산 물권을 목적으로 하는 소는 부동산 등기제도라는 공익성이 강한 물권의 공시제도와 불가분의 관계를 가지고 있고, 이러한 공시제도는 나라마다 그 성립이나 유효요건, 절차 등이 서로 달라 당해 국가의 법원이 가장 신속하고 적정한 재판을 할 수 있는 점, 비록 대한민국이 당사자로 참여한 것은 아니나 1968년 채택된 ‘민사 및 상사사건의 재판관할과 재판의 집행에 관한 유럽공동체협약’ 및 2001. 3. 1.부터 이를 대체한 ‘민사 및 상사사건의 재판관할과 재판의 집행에 관한 유럽연합의 이사회규정[Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters]과 대한민국이 회원국으로 가입하여 활동하고 있는 헤이그 국제사법회의(Hague Conference on Private International Law)에서 논의한 민사 및 상사사건의 국제재판관할과 외국재판에 관한 협약(Convention on Jurisdiction and Foreign Judgements in Civil and Commercial Matters)에서 마련되었으나 채택되지는 아니한 1999년 예비초안 및 2001년 초안 등의 국제규범이나 그 초안에서 모두 부동산에 대한 물권을 목적으로 하는 소송은 당해 부동산 소재국 법원의 전속적 국제재판관할을 인정하고 있고, 이는 국제적으로 수긍되는 법리를 문서화한 것으로 보이는 점 등에 비추어 보면, 외국에 소재하고 있는 부동산 또는 그 지분의 이전등기를 구하는 소송은 대한민국과 실질적 관련성을 인정하기 어렵고 오히려 그 부동산 소재국 법원이 전속적 국제재판관할을 가진다고 봄이 상당하다. 따라서 홍콩에 소재하는 이 사건 부동산 지분에 관한 소유권이전등기절차의 이행을 구하는 이 사건 주위적 청구 부분의 소에 관하여는 중화인민공화국 홍콩특별행정구의 법원이 전속적 국제재판관할을 가진다고 할 것이고, 원·피고 모두 대한민국 국민이고 주소지가 대한민국 내에 있는 등으로 대한민국 법원에 국제재판관할을 인정하는 것이 소송당사자들의 편의 등 개인적인 이익에 부합하는 측면이 있다고 하더라도 달리 볼 것이 아니다.

The plaintiffs asserted that the plaintiffs should file a lawsuit claiming ownership transfer registration while seeking confirmation of the absence of the initial purchase price payment obligation. Accordingly, they added the main claim of this case. The defendant asserts that it is against the principle of good faith that the defendant's assertion of violation of international jurisdiction again is contrary to the principle of good faith. However, the existence of jurisdiction is a matter to be deliberated ex officio by the court, and the above circumstance is that the defendant's assertion of violation of the principle of good faith should not be

Ultimately, the lawsuit of this case is unlawful as it is filed with a court of the Republic of Korea without international jurisdiction.

3. Judgment on the main defense of the conjunctive claim

The plaintiffs seek confirmation that there is no obligation of the plaintiffs to pay the purchase price pursuant to the sales contract concluded on October 3, 1992 between the deceased non-party 1 and the defendant as the preliminary claim of this case.

As to this, the defendant asserts that although the plaintiffs can file a lawsuit against the defendant seeking the implementation of the ownership transfer procedure, seeking confirmation of non-existence of the purchase price obligation is unlawful as there is no benefit of confirmation.

In principle, the forum law applies to the procedure of lawsuit. As such, the law of the Republic of Korea shall be the governing law to determine whether the conjunctive claim of this case is legitimate with the benefit of confirmation.

A lawsuit for confirmation is recognized in cases where it is recognized that it is the most effective and appropriate means to determine the legal status of the plaintiff when the legal status of the plaintiff is unstable and dangerous. Thus, even though a lawsuit for confirmation may be brought, a lawsuit for performance is not a final solution of a dispute, and thus there is no benefit of confirmation (see Supreme Court Decision 2005Da60239, Mar. 9, 2006, etc.). The same applies to cases where international jurisdiction in a lawsuit for performance is located in a foreign court.

In this case, although the plaintiffs can file a lawsuit against the defendant to implement the registration procedure for ownership transfer of the shares of this case in accordance with the sales contract, which appears to be the most effective and appropriate means to eliminate the uncertainty and danger of legal status, with the Hong Kong Special Administrative Region of the People's Republic of China, the plaintiff can file a lawsuit with the court of Hong Kong Special Administrative Region of the Republic of Korea, which has exclusive jurisdiction over the registration of ownership transfer of the shares of this case

Inasmuch as the Plaintiffs dispute not the Defendant’s obligation to transfer ownership but only the payment of the purchase price, the Plaintiffs asserted to the effect that, upon receiving the confirmation that there was no obligation to pay the purchase price to the Defendant, the Defendant had interests in confirmation by arbitrarily implementing the registration procedure for transfer of ownership of the instant real estate portion, there is no evidence to acknowledge this (the Defendant is disputing the fact that a sales contract was concluded) and even if so, there is no benefit in confirmation of this part of the claim on the ground that the

4. Conclusion

Therefore, all of the plaintiffs' lawsuits for the main and conjunctive claims of this case are dismissed, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Sung-sung (Presiding Judge) Constitution of the Republic of Korea