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(영문) 제주지법 1988. 5. 6. 선고 87나21 제1민사부판결 : 상고
[토지입주권명의변경][하집1988(2),129]
Main Issues

The benefit of protecting the rights of action against the claim for performance of the procedure for title change in the sericultural complex

Summary of Judgment

Although the right to occupy the sericultural complex is a comprehensive position that includes the right to use the exclusive land, the right to claim the transfer of ownership after full payment of the sale price, and the obligation to pay the sale price, etc., even if the approval procedure of the competent authority is necessary, it is a kind of property right that can be disposed of, and if it is necessary to cooperate with the transferor in order to obtain the approval of the transferor to transfer and acquire it, there is a benefit in protecting the right by seeking the transferor's expression

[Reference Provisions]

Article 226 of the Civil Procedure Act

Plaintiff, Appellant

Span Chang-in

Defendant, appellant and appellant

Freeboard Round

Judgment of the lower court

Jeju District Court (86dan273 delivered on July 1, 200)

Text

1. Revocation of the original judgment;

2. The plaintiff's claim is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

Purport of claim

The defendant shall implement the procedure for changing the name of the sericultural complex occupancy right to the land listed in the attached list to the plaintiff, and deliver the land.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution on the part of delivery of land.

Purport of appeal

The same shall apply to the order.

Reasons

1. Determination on this safety defense

The Defendant’s legal representative, as a defense of safety, did not know the right to move into the above land by the non-party 1’s transfer of the above land in accordance with the policy of the state’s development of sericultural industry. The above legal representative’s right to move into the land of the non-party 2’s own land is not a dispute that can be freely disposed of according to the individual’s will until the sale price is fully paid. The above Gun’s management ledger is merely a document prepared for the operation of the sericultural complex. Thus, the dispute regarding the change of the right to move into the above land can not be subject to civil procedure. Second, the above Gun’s application for change of the title to move into the above Gun’s own land should be examined not only if the parties express their intent, but also if the parties applied for change of the title to move into the above land to the above Gun’s own land by attaching the documents necessary for change of the title to the above Gun’s ownership (the above 1’s original purport of the No. 21).

According to the above facts, although the right to occupy the land of this case is a comprehensive status that includes the right to use the land and the obligation to pay the purchase price after full payment of the right to use the land even before the sale price, and the right to use the land of this case includes the obligation of property value such as the right to request the transfer of ownership after full payment of the sale price, and even if the approval procedure of the competent authority is required, it cannot be denied the nature of the property right that can be disposed of. In order to obtain the approval of the above Gun, it is necessary for the transferor's cooperation such as submission of documents in the name of the transferor at the time of the transfer request for replacement to the above Gun. Thus, the lawsuit of this case where the plaintiff acquired the right to occupy the land of this case from the above Gun to obtain the approval of the above Gun, who is the transferee of the right to use the land of this case and who is in possession of the above Gun in return for the payment of the purchase price from the above Gun, is not seeking the change of the title of the above Gun to the above procedure.

2. Judgment on the merits

The plaintiff's legal representative asserts that the plaintiff had purchased 6,40,00 won for the above 1985.1.8, 1980 won for the above 100 won for the first time, 100 won for the above 10-year loan, 200 won for the first time for the above 10-year loan and 100 won for the first time for the first time for the first time for the payment of interest, 10-year loan for the first time for the first time for the first time for the defendant, 30-year loan for the first time for the first time for the first time for the second time for the first time for the first time for the first time for the settlement of interest, 10-year loan for the second time for the first time for the second time for the first time for the second time for the first time for the first time for the first time for the second time for the first time for the settlement of interest, 30-year loan for the first time for the second time for the second time for the second time for the first time for the second time for the first time for the first time for the second time for the statement.

On the other hand, the defendant's attorney asserted that the market price of the right to occupy the land of this case at the time of the promise to return the above substitute is equivalent to KRW 8,500,000 because the market price of the right to occupy the land of this case exceeds KRW 6,40,000,000, and such reservation is null and void, but there is no evidence to prove that the market price of the right to occupy the land of this case at the time of the above reservation exceeds KRW 6,40,000,

Furthermore, the defendant's legal representative asserts that the above claim of this case is groundless. Thus, in full view of the purport of the pleading in the statement No. 2 (Deposit) without dispute over the establishment, the defendant's legal representative cannot recognize the fact that the above claim of this case was duly repaid for the plaintiff, and the above debt of 4,129,310 won with the rate of 25 percent per annum from March 26, 1985 to October 23, 1987, prior to exercising the right to complete the return of the above substitute, the defendant's legal representative's right to complete the return of the substitute debt of 6,40,000 won, and the above debt of 4,129,310 won with the interest of 2,529,310 won per annum from October 23, 1987, the above obligation between the plaintiff and the defendant was extinguished as the defendant's deposit for the above repayment. Therefore, the defendant's legal representative's defense is justified.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed due to the lack of reason, and since the original judgment is unfair with different conclusions, the defendant's appeal is accepted, and the plaintiff's claim shall be revoked, and the plaintiff's claim shall be dismissed, and it is so decided as per Disposition by applying Articles 96 and 89 of the Civil Procedure Act

Judges Yellow Co., Ltd. (Presiding Judge)

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참조조문

- 민사소송법 제226조

본문참조조문

- 민사소송법 제96조

- 민사소송법 제89조

원심판결

- 제주지방법원(86가단273 판결)