(영문) 서울고등법원 2015.7.17.선고 2014나39079 판결

A. In the first place, the Defendant will implement the registration procedure for cancellation of the registration of the establishment of a neighboring mortgage completed by the Seoul Central District Court No. 3492, Jan. 19, 201, as to the Plaintiff’s share of 4/8 of the real estate listed in paragraph (2) of the attached Table of Real Estate.

B. Preliminaryly, the Defendant received KRW 400 million from the Plaintiff, and subsequently implemented the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Seoul Central District Court No. 3492, Jan. 19, 201, as to the portion of 4/8 out of each real estate listed in paragraph (2) of the attached Table of Real Estate List

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Basic facts

A. Relationship and Inheritance of the Parties

1) C and D married in around 1939, and married in F, Defendant, G, H, and I (hereinafter referred to as “Defendants, etc.”) including E, a child, and five brothers and sisters, excluding E. C, died on July 6, 1983, and D on November 24, 2003.

2) E married with J and divorced from J on December 17, 1994, and divorced from J on March 11, 1998, and went back to P (O) as his child on March 11, 1998. On July 19, 2010, E died due to pulmonary blood transfusion, etc. while receiving cancer surgery at Atol University Seoul Mother Hospital.

3) At the time of the death of E, the real estate listed in the attached real estate list (hereinafter referred to as “attached real estate list”).

‘No. 1, 2, and 3 real estate' was registered as E. Of them, the registration of ownership transfer was completed on March 13, 1980 in the future on March 5, 1980.

B. On July 7, 2010, before the death of E, the Plaintiff, K, M, and P (hereinafter referred to as “Plaintiff, etc.”) and the Defendant, etc. entered into an agreement on inheritance, etc. of the first, second, and third real estate (hereinafter referred to as “first agreement”) on July 7, 2010, under the premise that the first, second, and third real estate was inherited from the fleet (C and D) before the death of E. The main contents of the agreement entered into by the first agreement are as follows. However, at the time, the Plaintiff, as a person with parental authority who is a minor, did not enter into the first agreement on behalf of P, and did not appoint a special agent for P and participate in P.

A person shall be appointed.

2) After the death of the Plaintiff, etc. and the Defendant, etc. completed the registration of ownership transfer for the second real estate by share pursuant to the first agreement. However, there were circumstances where the Defendant, etc. cannot obtain the registration of ownership transfer for the second real estate, making it difficult for the Plaintiff, etc. to register the registration of ownership transfer under their names. Accordingly, the Plaintiff, the Defendant, etc., upon the first agreement on January 18, 201, shall register the total of 4/8 shares (=40 shares x 5) of the Defendant, etc. in the name of the Plaintiff, etc., and 5/8 shares to be registered in the future of the Plaintiff (5/40 shares each of the Plaintiff’s 5/40 shares + the total of 20/40 shares each of the Plaintiff’s 5/8 shares to be registered under the first agreement + the total of 20/40 shares of the Defendant, etc.). As a result of the second agreement, the Plaintiff was additionally charged with inheritance tax, etc., and the Defendant agreed with the Plaintiff.

The parties agree to perform the following provisions with respect to the second real estate, and to prepare a written agreement thereon: The full income from rent for the next five years for the real estate on the second real estate on the second real estate on the second real estate on the condition that the plaintiff imports, and all public charges, such as national taxes and local taxes, imposed on the said real estate on the plaintiff shall be borne by the plaintiff.2.

1) In accordance with the second agreement, on January 19, 201, with respect to the 5/8 portion of the 2/8 portion of the real estate, the registration of ownership transfer was completed in the name of the Plaintiff with respect to each 1/8 portion of the 1/8 portion in the name of K, M, and P on July 19, 2010 (for completing the registration of transfer as above with respect to the 2-real estate, the Plaintiff et al. prepared a written agreement on the division of inherited property (Evidence 4-4) with respect to the 2-real estate divided into the aforementioned shares in shares, and H participated in the case of a special agent of P.

2) On or after the completion of the registration of transfer of ownership as above, the second agreement (the second agreement includes a mortgage contract as mentioned above, and the plaintiff and the defendant prepared a "mortgage creation contract (Evidence A 3) for the creation of a mortgage on January 18, 2011; hereinafter referred to as "second agreement" and "second agreement" without distinguishing between "the above "mortgage creation contract" and "the above "mortgage creation contract" from "the second agreement")" as to the 4/8 share out of the plaintiff's 5/8 share in the second real estate (hereinafter referred to as "mortgage creation contract of this case") was completed in accordance with the second agreement.

【Ground of recognition】 The fact that there has been no dispute, Gap's 1 through 5, 7, 8, Eul's 4 or 5 (including branch numbers in case of additional numbers; hereinafter the same shall apply), the purport of whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

1) As to the main claim

A) The second agreement, which is the act of causing the instant right to collateral security, is null and void for the following reasons.

(1) The first agreement is a mixture of the agreement on the division of inherited property between E and the Defendant, etc. on the premise that the property inherited from his parent (C and D) due to the Plaintiff’s mistake, etc., even though the second agreement on the division of inherited property and the second real estate shares acquired as a result of such agreement on the division of inherited property and the second real estate shares acquired as a result of such agreement on the division of inherited property between E and the Plaintiff, etc. on the first and third real estate that are inherited from E. However, without undergoing the appointment procedure of a special agent for the minors P(P), the first agreement was reached on behalf of the Plaintiff, which is an act against the interest of P

Therefore, the first agreement and the second agreement made for its implementation are null and void.

(2) The second real estate was not inherited from the parents, but E’s inherent property. At the time of the first agreement, the Defendant et al. threatened the Plaintiff by asserting that the second real estate was inherited from the parents and filed a lawsuit without having opened half of the property, claiming that it was the property inherited from the parents, while the Defendant et al. al. hedging the death of the Defendant et al. around the first agreement. The Plaintiff responded to the first agreement without confirming whether the second real estate was inherited from the parents in a state where the second real estate was physically and mentally weak. Accordingly, the first agreement is null and void as it was a juristic act that has considerably lost balance concluded due to the Plaintiff’s influorial, rash and bad experience, and the second agreement made for its implementation is also null and void.

(3) Since the second real estate is located within the area subject to permission for land transaction contracts under the National Land Planning and Utilization Act, since it is farmland, permission for land occupancy contracts under the said Act must be obtained, and a qualification certificate for acquisition of farmland must be obtained in accordance with the Farmland Act (the plaintiff must obtain permission for land transaction contracts in accordance with the Enforcement Decree of the Framework Act on the Regulation of Land Use). The above assertion is against Article 10(1) of the Framework Act on the Regulation of Land Use and Article 9(4)1 of the Enforcement Decree of the same Act. The land use plan confirmation issued by the competent administrative agency

It is presumed due to the fact that the Defendant, etc. provided that the permission for a land transaction contract should be stated. Accordingly, as seen earlier, since the Defendant, etc. did not obtain permission for a land transaction contract and the qualification certificate for acquisition of farmland even until now, the first agreement and the second agreement made for its implementation are null and void. (B) Even according to the Defendant’s argument, the Defendant, etc. entrusted the Plaintiff with the title of 4/8 shares out of the second real estate, and therefore, the instant collateral security, which was established for the said 4/8 shares and the said shares held in title, is null and void pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name.

C) Despite the fact that the second real estate is the inherent property of E, the Defendant et al. deceivings the Plaintiff that the said second real estate was inherited from his parents at the time of the first agreement, and the Plaintiff thought that the second real estate was inherited from his parents, such as the Defendant et al. and responded to the first agreement. Therefore, the first agreement should be revoked because it was made by deception by the Defendant et al. or by mistake by the Plaintiff, etc., and the second agreement for the implementation thereof should also be revoked. The Plaintiff’s delivery of a duplicate of the instant complaint and the second agreement shall be revoked.

D) For the foregoing reasons, the instant right to collateral security is null and void, and the Defendant is obligated to implement the procedure for cancellation of the instant right to collateral security as part of the act of preserving the jointly-owned property, as a co-owner who inherited the second real property from E.

2) As to the conjunctive claim, if it is acknowledged that the Defendant paid KRW 400 million to pay the Plaintiff’s increased inheritance tax as a result of the second agreement, and if the instant right to collateral is deemed as the secured obligation, the Defendant is liable to perform the registration procedure for cancellation of the instant right to collateral after receiving KRW 400 million from the Plaintiff.

B. Summary of the defendant's assertion

1) The second real estate was not the property of E, but the property of E and the Defendant, etc., owned D, the mother of E and the Defendant, etc. purchased under the name of E.

2) A) The first agreement is ① consultation on the division of inherited property between E and Defendant, the co-inheritors, and ② agreement on the division of inherited property between E and Defendant, the co-inheritors, and ② the share acquired as a result of the division of inherited property as above, and the first and third real estate, the inherent property of E, are mixed with the agreement that E donated to the Plaintiff, etc. by E. As such, P is only in the position of donee, and it cannot be deemed that the first agreement is in conflict with this sea. Thus, even if the first agreement was not made without undergoing the procedure for the appointment of a special agent

B) In addition, even if the second real estate is owned by E as the Plaintiff’s assertion, the first agreement is that the first agreement gives the Plaintiff, etc. a donation of 1/2 of the second real estate inherited from E to the Defendant, etc.

Therefore, since the Plaintiff’s donation of part of P’s statutory share of inheritance to the Defendant cannot be deemed as an act that conflicts with P and interest, the first agreement cannot be deemed null and void even if it did not undergo a special agent appointment procedure, etc. for P.

C) Even if the first agreement was in conflict with this sea and the Plaintiff was unable to make the first agreement on behalf of P, H later agreed upon the second agreement on the premise that the first agreement is valid, and accordingly, prepared an additional agreement without any objection in the process of registering the transfer of the second real estate, and as such, the first agreement should be deemed valid by the ratification of the Special Representative H, as the first agreement was presented as a witness in the court of the first instance and the first agreement was testified to be valid.

D) Furthermore, denying the validity of the first agreement on the ground that the special agent of P was not appointed in spite of the Plaintiff’s initiative and the first agreement, cannot be allowed against the good faith principle.

3) The Plaintiff was well aware that the second real estate was inherited from D and was led to the first agreement voluntarily, not the Plaintiff’s deception by the Defendant, etc., or the Plaintiff’s mistake by mistake, or the Plaintiff’s influence, rashness, and experience.

4) Permission for a land transaction contract under the National Land Planning and Utilization Act applies only to the transfer or establishment in return for consideration. As such, in a case where Defendant et al. succeeds to the second real estate as in this case, permission for a land transaction contract is unnecessary under the said Act. The qualification certificate for acquisition of farmland under the Farmland Act is to be attached at the time of filing an application for registration of ownership, and is not required to create the effect

3. Judgment as to the main claim

A. Order of determination

The ultimate issue of the instant case is the validity of the instant right to collateral security, and the main public room between the Plaintiff and the Defendant is focused on the validity of the first agreement and the second agreement for the implementation thereof. However, for the judgment, it should first be examined as to whether the second real estate was inherited from the Defendant, etc.’s parents at the time of the first agreement (whether D trusted the second real estate to E), and ② the legal nature of the first agreement.

Therefore, first of all, we examine the parties’ assertion on the validity of the instant right to collateral security (the validity of the first agreement and the second agreement for the implementation thereof, etc.) on the premise thereof (the documents submitted by the Plaintiff and the Defendant after the closing of argument in the trial).

B. As to whether the second real estate is inherited property E and the defendant etc.

Considering the above facts, evidence and evidence as well as evidence Nos. 1 through 3, 6, 11, and 12, witness H, K's testimony, part of testimony of the party branch, the head of the Seoul Immigration Office of the party branch, and the head of the Sin University Seoul Hospital, which can be recognized by comprehensively taking into account the following circumstances, it is determined that the second real estate was purchased under the name of E and the mother of the defendant et al. and trusted in title to E, and it was jointly inherited by E and the defendant et al. at the time of the first agreement (if the second real estate was trusted in title, it is a matter of legal attribution pursuant to the Act on the Registration of Real Estate under Actual Titleholder's Name. In other words, it is a matter of whether the second real estate is owned by the seller or the title trustee, and furthermore, whether D has any right to the second real estate. However, in this case, the plaintiff and the defendant are not only problematic, but it is judged that the title truster was the real estate and the type of the second real estate under title trust registration should be changed.

1) The parties to the first agreement are the plaintiffs, etc. and the defendant, etc., and at the time, the parties to the agreement stipulate that "the parties to the agreement recognize that the second agreement is jointly inherited property inherited from C and D, the first agreement ("the agreement in this case"). Even if the first agreement does not take effect for any reason, the evidence of the contents of the agreement in this case is not denied. Thus, according to the agreement in this case, it is evident that "the second real estate was recognized as jointly inherited property of E and the defendant, etc. inherited from D, etc. at the time of the first agreement."

2) The Plaintiff asserts that the first agreement was made by coercion or deception of the Defendant, etc. without confirming whether the second real estate was inherited property. However, there is no evidence to acknowledge that the Defendant, etc. threatened or induced the Plaintiff at the time of the first agreement.

3) In addition, the Plaintiff asserts to the effect that “the Plaintiff was unaware of the property relationship E at the time of the first agreement, and therefore, it was erroneous that the second real estate was inherited from D, etc. as the Defendant’s story, etc., as well as that it led to the first agreement in a situation where there was no yellow situation due to the illness of E, etc. However, the Plaintiff’s assertion that the Plaintiff was married with E at the time of the first agreement and was not aware of the property relationship of E around 12 years, is difficult to accept.

4) Furthermore, according to the aforementioned evidence, E was in a state of normal expression of intent to make a will or inheritance, such as: (a) during the time of the first agreement and died on July 19, 2010; (b) on July 7, 2010, when the first agreement was reached, it was a state in which medical personnel would normally express their intent to make a will or inheritance by stating that he had a relatively good condition. Considering the health condition of E and the importance of the first agreement, it is consistent with the empirical rule to view that E was already aware of, or was aware of, the content before the first agreement, at least after the first agreement. Accordingly, the Plaintiff was aware of the property relationship of E by hearing from, or confirming it to, the first agreement. After the first agreement, the Plaintiff agreed to implement the second agreement on the premise that the first agreement is valid without any special objection.

5) The Plaintiff discussed the burden of inheritance tax with K and the Defendant around early 201, which was the second agreement, around early 201. The Plaintiff appears to have requested the Defendant to pay the amount equivalent to 400 million won of inheritance tax. Accordingly, according to the Plaintiff’s statement on January 9, 201, which was the first agreement, 4/8 shares of the 2nd real estate, which was determined by the Plaintiff as the shares of the Defendant, were registered in the name of the Plaintiff, and the Plaintiff additionally borne by the Plaintiff. Accordingly, the Defendant would have requested the Defendant to pay the amount equivalent to 400 million won of inheritance tax. In fact, the Plaintiff transferred the amount of 40 million won of inheritance tax to K which was actually dealt with the inheritance tax problem collectively on January 28, 2011 [the Plaintiff discovered the fact that the Plaintiff paid 400 million won of inheritance tax to K [the Plaintiff was aware of the fact that the Plaintiff actually paid 400 million won of inheritance tax under the name of the Plaintiff’s agent (the Plaintiff’s attorney at first instance).

6) On March 13, 1980, the provisional registration of the right to claim ownership transfer in the name of D was completed immediately after the registration of ownership transfer was completed under the name of E on March 13, 1980. The above provisional registration continued until November 14, 2002, which was one year before D’s death. The defendant asserts that “E was to prevent the arbitrary disposal of the second real estate, a title trust property,” but it is difficult to find any other reasonable grounds for rejecting the above claim (in addition, D appears to have leased the second real estate to another person and managed it directly by receiving the rent). The defendant asserted that the above provisional registration was for convenience in managing the second real estate due to the health deterioration of D’s "for the reason why D’s death was cancelled during the year prior to D’s death." It is sufficiently acceptable to the defendant’s aforementioned assertion.

7) Meanwhile, the Plaintiff appears to have filed the instant lawsuit with the purport of denying all the legal relations related to the first agreement, including the validity of the first agreement, which was two years after the first agreement, in relation to K, and since it was difficult to find a method of resolution against K only. (The Plaintiff appears to have made the first agreement and the second agreement to implement the first agreement on the premise that the second real estate is inherited from the fleet, on the premise that it is recognized that the second real estate is inherited from the fleet, and there is no circumstance that the Plaintiff changed the existing idea and position of the Plaintiff as well as the aforementioned dispute on the inheritance tax liability with K and explained the circumstance or reason that the second real estate is asserted as E’s proprietary property. (8) The Plaintiff asserted that the second real estate was inherited from H, F, and B, etc., and thus, it is the inherent property of E. However, even if H, F, and D, it cannot be deemed that the second real estate was inherited from the leased property or its legal nature.

Considering the above facts and evidence, the first agreement is reasonable to deem that: (a) the agreement on the division of inherited property between the plaintiff et al. who comprehensively takes over the E’s inheritance portion for the second real estate inherited from D and the defendant et al. who is the co-inheritors with respect to the second real estate; and (b) as a result of the agreement on the division of inherited property for the second real estate, the agreement on the division of inherited property between the plaintiff et al. as the heir and the third real estate for the first and third real estate for which the plaintiff et al. were to succeed as the result of the agreement on the division of inherited property for the first and third real estate for which the plaintiff et al. died in the future.

1) The purport of the instant agreement is to recognize and agree that “the property is jointly inherited by heir E and the defendant, etc., as the property is inherited by the heir E and the defendant, etc.” According to these entries, it is clear that the first agreement includes “the agreement on the division of inherited property between the co-inheritors of C and D, which is the object of the second real estate.” However, the instant agreement explicitly states “Plaintiff, etc. as the party” and “Defendant, etc.,” the co-inheritors of the second real estate may not be regarded as the party to the first agreement. Considering these circumstances, considering the degree of ability to express their intent about E’s will or inheritance at the time of the first agreement, the Plaintiff, etc. is bound to be deemed to have reached the first agreement as a comprehensive transferee of the inheritance of the second real estate from E. Ultimately, the first agreement includes the “Plaintiff, etc.” and the “Defendant, etc.” as the object of the second real estate.

2) In addition, the instant agreement includes the content that the ownership of part of the 2nd real estate belongs to the Plaintiff, etc., and that the 1nd and 3nd real estate, which is the inherent property of K and the 1st and E, is attributed to the sole ownership of K and the Plaintiff. This is to be deemed that the Plaintiff, etc. agreed on the division of inherited property regarding the 2nd real estate as seen earlier and that the division of inherited property was made for E’s property before the death of E based on the agreement (as long as the 2nd agreement cannot be deemed as a party to the 1st agreement, it shall not be deemed that E, such as

D. As to the validity of the first and second agreements

1) The agreement on the division of inherited property is valid with the consent of all co-inheritors, and if there is no consent of some co-inheritors or there is a defect in the power of representation in such declaration of intention, the division is null and void. The agreement on the division of inherited property with the contents of setting the scope of ownership in respect of inherited property constitutes an act contrary to the interest under Article 921 of the Civil Act, which, by the objective nature of the act, is likely to cause conflict of interest between inheritors, and thus, if the agreement on the division of inherited property is reached between the person with parental authority who is a co-inheritors and the minor, a special representative must appoint a special representative for the minor and consult on the division of inherited property on behalf of the minor, and if the person with parental authority agreed on the division of inherited property as a minor's legal representative, such agreement is null and void unless there is a legitimate ratification (see, e.g., Supreme Court Decision 2001Da28299, Jun. 2

In light of the above legal principles, as seen earlier, the first agreement is a mixture of the shares to be acquired through the agreement on division of inherited property and the agreement on division of inherited property for the first and third real estate for the second real estate, and the first and third real estate for the second real estate, and the first agreement on division of inherited property for the first and third real estate. Since the plaintiff as a legal representative of P who is a minor, the first agreement is in violation of Article 921 of the Civil Code, and only the conflict between the plaintiff and P is not clearly specified, so the entire agreement shall be deemed null and void. In addition, as long as the first agreement is null and void, it is reasonable to deem that the second agreement made for the execution thereof is also null and void.

2) As to this, the Defendant asserts that, after the first agreement, H selected as a special agent of P ratified the first agreement.

However, H is also a party to the first agreement, and even if H recognizes the validity of the first agreement, it cannot be viewed as a legitimate ratification of the first agreement. Accordingly, the Defendant’s assertion in this part cannot be accepted.

3) In addition, the Defendant asserts that denying the validity of the first agreement cannot be permitted against the good faith principle on the ground that the special agent of P was not appointed at the latest after the Plaintiff’s own initiative and the first agreement was reached.

If a person who violates the mandatory law rejects his/her assertion on the invalidity of the agreement on the ground that he/she himself/herself is an exercise of a right in violation of the good faith principle, this would result in realizing the result of excluding the parties by the mandatory law, and the legislative intent is entirely grounded, barring any special circumstances, such assertion cannot be deemed as contrary to the good faith principle, barring any special circumstance. Meanwhile, in order to deny the exercise of the right on the ground that it violates the good faith principle, in order to deny the exercise of the right on the ground that he/she was in violation of the good faith principle, the other party was provided with faith, or the other party was in good faith from an objective perspective, and the exercise of the right against the other party’s faith should reach the point that is not acceptable in light of the notion of justice (see, e.g., Supreme Court

In light of the above legal principles, it is true that the plaintiff's refusal of the validity of the first agreement while filing the lawsuit in this case to the effect of the second agreement is in violation of the principle of good faith and thus is not permissible. It is also true that the plaintiff's refusal of the validity of the first agreement in this case is in violation of the principle of good faith and thus is in violation of the principle of good faith and thus is not allowed.

However, Article 921 of the Civil Act is a mandatory provision for protecting a minor and realizing the result of violation of the provision should not be allowed in advance. Considering that P is a minor who has yet to be aged 17, it is difficult to readily conclude that the Plaintiff violated the good faith principle by denying the validity of the first agreement on the ground that the Plaintiff was not appointed as a special representative of P, even if considering the aforementioned circumstances in light of the fact that P is a minor who has yet to be aged 17.

E. Sub-committee

As above, the first agreement and the second agreement for its implementation are null and void, so the second agreement is in accordance with the second agreement.

The right to collateral security of this case also becomes null and void. Accordingly, the defendant is obligated to implement the procedure for registration of cancellation of the right to collateral security of this case to the plaintiff (the plaintiff's claim was accepted on the same ground as above, so the plaintiff's remaining assertion and preliminary claim are not judged

4. Conclusion

Thus, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is just with this conclusion, the defendant's appeal is dismissed on the grounds of its merit.