2014Da41414 Registration of transfer of ownership

Many litigants of the net X

1. T:

2. AB

3. AC;

4. AD;

1. B

2. C

3. D;

4. E.

5. F;

6. G.

7. H;

8. I

Suwon District Court Decision 2013Na34485 Decided May 29, 2014

March 20, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

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

1. Regarding ground of appeal No. 1

A. The interpretation of a declaration of intent is clearly confirming the objective meaning that the parties gave to the act of expression. Although the phrase used in the declaration of intention is not written, it shall be reasonably interpreted the objective meaning that the parties gave to the declaration of intention 7.0 (see, e.g., Supreme Court Decisions 94Da5122, Jun. 30, 1995; 20027923, Oct. 6, 2000). In this case, if the objective meaning of the act of expression is clear, unless there are special circumstances, the existence and content of the declaration of intention as indicated act shall be recognized (see, e.g., Supreme Court Decisions 200Da72572, May 24, 2002; 2012Da44771, Nov. 29, 2012).

B. According to the reasoning of the lower judgment, the first instance judgment as cited by the lower court, and the evidence duly admitted, the following facts are revealed.

(1) There is also evidence that the name was changed to the name of the J clan (AE smallest around January 31, 1990; hereinafter referred to as the "family of this case") made title trust with 1/5 shares in L, M, N,O, and P, which are the family members of the clan, 3,076 m (hereinafter referred to as the "land of this case").

(2) The written consent of the clan General Meeting (No. 10, No. 9 of the judgment of the court below seems to be the clerical error of No. 10," written consent of the clan which was prepared by the resolution of October 25, 1987, stated in the part 1, "No. 39,064 (hereinafter referred to as "the forest of this case") of "No. 39,064 (hereinafter referred to as "the forest of this case")" in the part 1, "No. 39,064 (the land of this case"), No. Kanam-si (the land of this case), and No. 1, "No. 8,15, 6 and 25, etc. of the clan," stating that "No. 2 of the clans of this case will be the same as "No. 10, No. 9 of the court below," and that the previous clan's decision that had been restored by the Supreme Court's registration of No. 10, No. 10 and No. 30 of the defendant's.

(3) On May 12, 198, the Plaintiff and Q made a sales contract with the clan Member R, setting the sales price of the instant land as KRW 114 million, and after which the agreement on the increase in the sales price was reached, the Plaintiff and Q paid the total purchase price of KRW 120,300,000 to the instant clan through R.

(4) The registration of ownership transfer was completed on June 18, 198 with respect to the 3/5 shares, each of which was nominal trust for L,O, and P, among the instant land. With respect to Q and the Plaintiff’s title trustee S, with respect to the 1/5 shares, each of which was nominal trust for M, the registration of ownership transfer was completed in the name of the instant clan on the same day as the Plaintiff’s wife on the same day, and the registration of ownership transfer was completed in the name of T on the same day. As to the shares held in title trust to N, the registration of ownership transfer remains in the name of N on the same day, and N died on May 16, 198.

(5) Meanwhile, as seen above, L appears to have been appointed as the representative of the clan of this case after completing the registration of transfer of ownership in Q, S, and T’s name with respect to the remaining shares except for the shares trusted to N among the land of this case. The clan of this case filed a lawsuit seeking the cancellation of the ownership transfer registration for the above 1/5 shares out of the land of this case, asserting that the Seoul District Court Decision 2013No274956, Oct. 16, 2013, which did not raise any specific objection against the registration of the above transfer of ownership, was rendered by the first instance court to dismiss the Plaintiff’s claim, which was after the Seoul District Court Decision 2013No274956, Oct. 16, 2013, which had not sold 1/5 shares out of the land of this case. Examining the above facts in light of the legal principles as seen earlier, the resolution of the clan of this case (hereinafter “the resolution of this case”) seems to have been made by reflecting the resolution of the members of this case including the land of this case in question.

(2) However, along with the purport of confirming that the above real estate is owned by the clan of this case, the purport of the resolution of this case is that "the selling price of the real estate is above 25,000 won for the clan," and it is clear that the clan of this case permits the sale of part of the real estate which is the object of the resolution of this case, and it is the purport of setting the lower limit of the price. In particular, although the resolution of this case determined that the sale of the real estate was conducted by taking the issue of voluntary sale of the real estate which was already registered in the name of the clan of this case, it should be inferred that the decision of this case was made with the intention to sell part of the above real estate in fact. In addition, the resolution of this case determined that the funeral space should be set up for the sale of the forest of this case where the graves of the ancestor of this case were installed, and the method of raising the fund was also discussed in light of the empirical rule, and it can be said that the resolution of this case can be made for the sale of the real estate.

On the other hand, since the forest land of this case among the above real estate is subject to the establishment and establishment of a tombstone, it is not easy to consider it as a subject of sale, and in light of the fact that finite price was determined based on the usual price, it is not easy to see it as a subject of a house. Accordingly, the real estate subject to sale in the resolution of this case is likely to be the land

(3) On May 12, 198, after the resolution of this case was made, the sales contract of this case was concluded on May 12, 198. The sales contract was actually made on the remaining 4/5 shares except the shares in title trust to N who died before the conclusion of the sales contract, and the registration of ownership transfer was made to the Plaintiff and Qu. In particular, with respect to the shares 1/5 shares which were trusted in title trust to M, the clan of this case transferred the registration of ownership transfer directly to

In light of the fact that the registration of transfer of ownership was impossible without the consent of the title trustee, and that the resolution of this case was made to prohibit the management and disposition by the title trustee prior to the above sales contract and to the effect that the clan of this case directly exercises this right, it would in fact be impossible for the clan of this case without the resolution or consent of the clan of this case concerning the disposal of the land of this case and the registration of transfer of ownership. Furthermore, even though the representative was changed for a considerable period of time to file a lawsuit seeking the cancellation of the ownership transfer registration against T, etc. around the time of the above transfer of ownership or thereafter, it seems that the clan of this case did not directly deal with the above sales contract or the registration of transfer of ownership. Such circumstances also support the difficulty to deem that the disposition of the land

(4) In light of the above various circumstances, it is reasonable to deem that there was a resolution to sell the instant land at the time of the resolution of the instant clan, barring any other special circumstances.

D. Nevertheless, the court below determined otherwise, that the resolution of this case is merely limited to the fact that some clan members voluntarily sold the forest land of this case (the "land of this case" seems to be a clerical error in the judgment of the court below) in the name of clans, and it cannot be deemed that some clans resolved to dispose of the land of this case, and that the resolution of this case was made.

Therefore, the court below erred by misapprehending the legal principles on the interpretation of expression of intent and failing to exhaust all necessary deliberations in violation of logical and empirical rules, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-young

A person shall be appointed.