[1] The legal nature of contracts for the sale of charnel and certificates for the disposal of charnels issued according to such contracts

[2] The case holding that since the right to use a charnel house based on the acquisition of a wing certificate is a kind of bond, it is necessary to notify the transfer or consent of the debtor in order to oppose the debtor by the transfer or acquisition

[1] Since the contract for the sale of a charnel with the purport that the seller of a building in units grants the authority to exclusively occupy and use a charnel house to the buyer of a building in units is a bond contract, the contract party is bound, and even if the contract for the sale is concluded and the certificate is prepared and delivered, it is only one evidentiary document. Therefore, if the certificate is distributed before the transfer, it shall not be binding upon a third party, such as the seller, unless the certificate meets the requirements for setting up an assignment of the claim. The same shall apply to the case where the payment contract for the house in units is concluded and the certificate for the house is issued.

[2] The case holding that since the right to use a charnel house based on the acquisition of a wing certificate is a kind of bond, it is necessary to notify the transfer or consent of the debtor in order to oppose the debtor by the transfer or acquisition

[1] Article 105 of the Civil Code / [2] Article 450 of the Civil Code

Plaintiff (Law Firm Hanl, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Incheon Civil Law, Attorneys Kim Young-young, Counsel for defendant-appellant)

December 27, 2007

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that the Defendant is the Plaintiff who has the right to use the 960 period (it shall be 4,101 through 4,800, 3,05 through 3,100, 2,98 through 3,001, 2,990 through 2,997, 1,401 through 1,500, 1,348 through 1,400, 1,400, 1,408 through 1,400, hereinafter referred to as the “certificate of this case”) issued by the Defendant with respect to charnels newly constructed on the land listed in [Attachment List 1] (hereinafter referred to as “instant land”).

1. Basic facts

A. Promotion of charnel projects of this case and issuance of certificates of the instant charnel;

(1) On May 20, 1996, Nonparty 1 obtained a building permit from the head of the Gun with respect to the building listed on the attached Table 2 as a religious facility on the instant land (hereinafter “instant building”). On April 12, 1999, Nonparty 1 conducted a new establishment project of a private charnel, i.e., reinforced and separated mountain village, with the approval of the installation of a private charnel house with a content of changing the use of a total of 1,926 square meters from the first and third floors of the instant building from a religious facility to a private charnel.

(2) On June 19, 2003, Nonparty 1 contracted out to Nonparty 2 (use of the title of the Eastern Construction Co., Ltd.’s general construction) the completion construction of the instant building, such as external strings, strings, electric facilities, and lighting, and provided 5,000 strings of the instant charnel with the payment for the completion of construction. Nonparty 1 agreed to deliver 1,500 strings of the instant charnels, intermediate payments, 1,500 2,000 strings of July 30, 2003, and 1,500 strings of the remainder as of the completion of construction. Nonparty 2 agreed to provide additional 1,00 strings of the instant building by October 30, 2003, which is the agreed time limit.

B. The relationship between the Plaintiff and Nonparty 2

(1) Around October 2003, the Plaintiff lent KRW 150,000,00 to Nonparty 2 at interest rate of 2%, but thereafter, on January 29, 2004, the period of reimbursement was extended by February 27, 2004, after receiving a promissory note as of February 27, 2004 from Nonparty 2 as the face value of KRW 150,000,000,000, and the due date was notarized.

(2) When Nonparty 2 was unable to pay the above loan to the Plaintiff by February 27, 2004, on June 18, 2004, Nonparty 2 agreed to pay the Plaintiff KRW 150,000,000 (interest separate) to the Plaintiff by June 22, 2004, and delivered the instant certificate of salary out of the instant certificate of salary that was issued by the Defendant for the purpose of payment by June 22, 2004, and agreed to pay the loan in kind with the above certificate of salary if the above loan is not repaid within the above period, and thereafter Nonparty 2 failed to pay the loan within the above period.

C. Change in the name of the building permit for the charnel of this case

(1) In relation to the instant charnel project, Nonparty 1 was detained by the case, such as violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Fraud) against many other complainants, and was under the appellate trial trial on August 19, 2004, Nonparty 4, who was in charge of the investor of the instant charnel project and the chairman of the operation committee of the Defendant (the inspector), issued a written agreement and written withdrawal from the complainants, and proposed a proposal to request the Defendant to transfer the name of the owner of the instant building permit to the owner of the instant building. Nonparty 1, in response to Nonparty 4’s proposal, prepared a written consent that “ Nonparty 1 consented to the establishment of all of the religious facilities and charnels under construction at the 40th place below the Incheon Strengthening-gun, Changcheon-ri, Incheon, to the non-party 4.

(2) The defendant was established on August 29, 2004, and around September 2004, the non-party 3, who became the representative, filed a lawsuit against the non-party 1 seeking to implement the procedure for changing the name of the building owner of this case by the above written consent, and submitted a report on changing the name of the building owner of this case from the non-party 1 on the ground that the above written consent was valid for the non-party 1 to express his intention of changing the name of the building owner of this case. On October 2004, the government office of strengthened Gun submitted a report on changing the name of the building owner of this case from the non-party 1, and withdrawn it on November 2, 2004. On April 2, 2005, the head of reinforced Gun submitted a report on changing the name of the building owner of this case from the non-party 1 to the defendant.

(3) On October 10, 2005, the Defendant completed the registration of initial ownership relating to the instant building, and obtained the approval for its use on July 11, 2007.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1 through 3, 5 through 8, 11 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence Nos. 1 through 5, 10, 11, witness non-party Nos. 1 and 4, witness non-party Nos. 1 and 4, and the result of each fact-finding conducted to the head of this court, the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

The defendant asserts that the completion of a charnel and the establishment of a charnel by the competent authorities against the defendant is extremely uncertain, and that the rights of the non-party 2 who acquired by the plaintiff are not definite or impossible, and that the lawsuit of this case has no interest in confirmation.

In this case, the contract for the sale of a charnel is merely an obligatory right and duty relationship as stated after the contract for the sale of a charnel, and the certificate of the use of a charnel issued accordingly is merely a documentary evidence. The substance of the lawsuit sought by the plaintiff to confirm the existence of a claim based on the certificate of the use of a charnel. The issue is whether the defendant succeeded to the obligation under the certificate of the use of a charnel in this case. Although the defendant did not have obtained the establishment of a charnel in this case, although he did not have obtained the establishment of a charnel in this case, he was a person who acquired a building permit for the building in this case including a charnel house, which is the object of the right under the certificate of the use of the charnel in this case, and completed the registration of ownership preservation in this present name. The plaintiff did not have succeeded to the obligation under the certificate of the use of a charnel in this case. Thus, the plaintiff cannot seek a specific implementation based on the claim relation without the permission of the competent authority for the use of a charnel in this case. Therefore, the plaintiff has no legal interest in seeking confirmation against the defendant.

3. Judgment on the plaintiff's claim

A. The plaintiff's assertion

The Plaintiff asserts that: (a) on June 22, 2004, the Plaintiff: (b) stated the issuance number of the instant urnment certificate; (c) the purpose of the instant urnment certificate was designated as an individual charnel house price; and (d) granted the right to permanent use; (c) on June 22, 2004, the Plaintiff obtained the instant urnment certificate as payment in lieu of the loan obligation from Nonparty 2; and (b) even if the instant urnment certificate is not a securities, the Plaintiff was assigned the claim under the instant urnment certificate; and (d) Nonparty 1 was paid as payment in lieu of the construction cost to Nonparty 2 by granting the disposition to Nonparty 2 in advance; and therefore, (c) the Defendant, the obligor, as well as the Defendant agreed to substitute the instant urnment certificate with the Plaintiff.

(b) Markets:

(1) Nature of a paper paper

A contract for the sale of a charnel, the purpose of which is to grant the authority to exclusively occupy and use a charnel to several buyers, shall be binding only on the parties to the contract, as it is a bond contract, and as such, even if a contract for the sale of a charnel was concluded and issued in the course of entering into a contract for the sale of a charnel, it shall be deemed that the certificate is merely only one evidentiary document, so it shall not be binding on a third party, such as the party to the contract, as long as the certificate does not meet the requirements for setting up against the transfer of a claim because the certificate was distributed before all, it shall be deemed that the contract for the sale of a charnel is not binding on the party to the contract and the certificate for the sale of a charnel is issued

(2) Determination as to the above (1) argument

First of all, the plaintiff's assertion that the certificate of salary in this case acquired the right under the certificate of salary in this case on the premise that the certificate of salary in this case is a securities is a securities, as seen earlier, that the certificate of salary in this case is merely a document of evidence. Therefore, the plaintiff's above assertion is without merit.

(3) Determination as to the above (2) argument

The plaintiff asserted that the plaintiff was unable to receive a loan from the non-party 2 on June 22, 2004, and that the certificate of this case was taken over as payment in substitutes. Thus, the right to use a charnel house based on the takeover of the certificate of this case is a kind of claim as seen earlier. In such a case, unless there are special circumstances, in order to oppose the debtor according to the assignment of claims, the notification or consent of the transfer must be required, and there is no evidence to prove that the non-party 2 notified the non-party 1 or the defendant of the above transfer, or that the non-party 1 or the defendant accepted the above transfer.

As to this, the Plaintiff asserts that Nonparty 1’s issuance of this case’s instant seal should be deemed to have consented in advance to Nonparty 2’s arbitrary disposal of it to a third party.

According to the witness non-party 1's testimony, although the non-party 1's delivery of the instant bill to the non-party 2 by payment in kind was recognized that the non-party 2 would consent even if it was disposed of or provided as a collateral to a third party, it is not sufficient to deem that the non-party 1 was a special contract to the effect that the non-party 1 predicted the transfer of the instant bill before the transfer and gave up the benefit of the transfer of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the assignment of the claim without notification or consent.

Therefore, even if the Plaintiff acquired the right to use a charnel from Nonparty 2, it cannot be asserted against the obligor.

(4) Determination as to the above (3) argument

The plaintiff asserts that the defendant took over the obligations under the instant salary certificate from the non-party 1, and thus, it is difficult to believe that each statement of No. 4-1 and No. 2, which seems consistent with the above, is the same in light of the non-party 4's testimony, and there is no other evidence to acknowledge it.

In addition, the plaintiff asserts that the defendant agreed to the plaintiff that he would substitute the certificate of this case for the new sale, but it is difficult to believe that each statement of subparagraphs 4-1 and 2-2 of the evidence No. 4- which seems consistent with this is in light of the testimony of the non-party 4, and there is no other evidence to prove that the defendant took over the obligations under the certificate of this case. Rather, according to the testimony of the non-party 1 of the witness, the non-party 1 consented to the transfer of the building permit title to the defendant due to the non-party 1's filing of a lawsuit against the non-party 1 against the reinforcement of the building owner's notification of the change of the name of the owner. Thus, it is difficult to recognize that the non-party 1 transferred only the obligations

(5) Sub-committee

Therefore, each of the above arguments to the effect that the Plaintiff acquired the opposing power of the assignment of claims from Nonparty 1 or the Defendant, or that the Defendant acquired the obligations under the certificate of the instant charnel by acquiring the right to use the instant charnel from Nonparty 2 is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition by applying Article 98 of the Civil Procedure Act to the costs of lawsuit.

[Attachment] List: omitted

Judge Lee Dong-hee (Presiding Judge)