[1] Whether the ground of appeal asserting a new fact that was not asserted by the court below is legitimate (negative)

[2] In a case where a construction business operator purchases a building site and completed a building with a building permit under the name of the owner of the building site for securing the price, and thereafter sold it to another, and the registration of ownership preservation for a building under the name of the owner of the building was completed, whether the person who purchased the building from the construction business operator can file a claim for registration of ownership transfer for the reason of sale

[3] The case denying the establishment of an expression agency in light of the unique nature of the circumstances, such as the content of the agent's business specified in the contract for parcelling-out and the method of ex officio payment in the contract for parcelling-out

[1] Without being asserted in the lower court, any assertion that is newly made in the final appeal cannot be a legitimate ground of appeal against the lower judgment.

[2] If a site owner sells a site to a building site to the building site owner, and a construction business operator obtains a building permit in the name of the site owner, this agreement does not conflict with the establishment of a security right by a juristic act, and the ownership of a completed building shall be transferred to the site owner within the extent of security purpose by completing the registration of ownership preservation in the name of the building owner, once the debtor who constructed the building acquired it from the original time and completed the registration of ownership preservation in the name of the site owner. In such a case, even if the construction business operator sold the building to another site, if the registration of ownership preservation on the building in the name of the site owner has been made, unless the construction business operator permits the ownership owner to sell the building to another site and pay part of the purchase price to the site owner, such disposal act by the building business operator goes against the security right of the site owner. Accordingly, a person who failed to obtain a registration of ownership transfer from the building business operator cannot seek a registration of ownership transfer for the reason of sale in the name of the site owner for the purpose of registration of ownership preservation.

[3] The case denying the establishment of an expression agency in light of the unique nature of the circumstances, such as the content of the agent's business specified in the contract for sale in lots and the method of ex officio payment, etc.

[1] Article 393 of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 2002) (amended by Act No. 6626 of January 26, 2002) / [2] Article 372 of the Civil Act / [3] Article 126 of the Civil Act

[1] Supreme Court Decision 86Nu325 delivered on February 24, 1987 (Gong1987, 561), Supreme Court Decision 92Da24325 delivered on September 25, 1992 (Gong1992, 299), Supreme Court Decision 2001Da63575 Delivered on January 25, 2002 (202Sang, 572) / [2] Supreme Court Decision 91Da13830 Delivered on August 13, 1991 (Gong191, 2348), Supreme Court Decision 91Da2505 delivered on August 18, 192 (Gong192, 2734), Supreme Court Decision 90Da63979 delivered on June 28, 1996 (Gong199, 192, 2734).

Plaintiff (Attorney Lee Yong-hoon, Counsel for plaintiff-appellant)

Defendant (Attorney Kim Jong-chul, Counsel for the defendant-appellant)

Incheon District Court Decision 2000Na 13085 delivered on February 7, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. Judgment on the first ground for appeal

Without being alleged in the lower court, a new argument in the final appeal cannot be a legitimate ground for appeal against the lower judgment (see, e.g., Supreme Court Decision 92Da24325, Sept. 25, 1992; Supreme Court Decision 2001Da63575, Jan. 25, 2002).

According to the records, the plaintiff purchased each land of this case from the defendant and the non-party 1 (hereinafter referred to as "the defendant et al.") who is the title holder of the registration of this case and granted the right of representation to the non-party 3 who is the original purchaser of this case who actually constructed the main complex building (hereinafter referred to as "the building of this case") on the land of this case to the non-party 3 who is the title holder of the registration of this case. Accordingly, the non-party 3 sold the building of this case 701 to the plaintiff as the title holder of the building of this case for securing the price of the land of this case. Accordingly, the non-party 3 did not assert the duty of registration of ownership transfer to the non-party 701 who was the title holder of this case under the agreement that the non-party 3 sold the building of this case as the land owner. Thus, the plaintiff's assertion that the non-party 2 did not have an obligation of registration of ownership transfer to the building of this case, and the court below did not err by misapprehending the legal principles as to the plaintiff's allegation.

In addition, the ownership of a completed building is transferred to the owner of the site within the extent of the purpose of security by an agreement that sells the site to the building owner and the building owner obtains a building permit under the name of the owner of the site, because it refers to the provision of the building to be completed as a security for the purchase price of the site, and the ownership of the completed building should be transferred to the owner of the site within the extent of the purpose of security by completing the registration of initial ownership preservation in the name of the owner of the site after the debtor acquired it from the original owner of the building, (see, e.g., Supreme Court Decisions 91Da13830, Aug. 13, 1991; 91Da2505, Aug. 18, 1992; 96Da9218, Jun. 28, 1996; 97Da8601, May 30, 1997; and in such case, even if the building owner did not acquire the ownership transfer registration under the name of the building, it cannot be paid to the owner.

Examining the record in light of the above legal principles, there is no evidence to acknowledge that Nonparty 2, the owner of the building of this case, and Defendant et al., the owner of the building of this case, agreed to sell the building of this case to others by Nonparty 2. Rather, according to the records, if the building of this case is sold to others by the Defendant et al., and if the building of this case is sold to Nonparty 2 without the consent, confirmation and receipt of the purchase price, it is sufficiently recognized that the Defendant et al. agreed not to recognize the sale.

Therefore, as alleged in the grounds of appeal, even if the Plaintiff concluded a sales contract with Nonparty 3 with respect to the building of this case, it shall not be allowed to seek a registration of ownership transfer against the Defendant who has completed a registration of ownership transfer with respect to the building of this case, and therefore, even if there were errors as otherwise alleged in the grounds of appeal by the lower court, such errors shall not affect the conclusion of the judgment. The grounds of appeal for this part shall not be accepted.

2. Judgment on the second ground for appeal

According to the reasoning of the judgment below, the court below rejected the plaintiff's conclusion of the sales contract of this case on October 9, 1995 that the non-party 3 prepared a sales contract of this case 701 under the name of the non-party 1 and the defendant, the owner of the non-party 3, and the non-party 3 proposed to the plaintiff at the time of the contract of this case. However, it is hard to view the non-party 1's right of representation as legitimate reasons for the conclusion of the sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's non-party 3 and the non-party 4, the non-party 3's agent's right of representation, etc. of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's sales contract of this case's contract.

Examining the evidence admitted by the court below in light of the records, the above measures of the court below are just and acceptable, and there is no error of law such as misconception of facts, representation, and principle of good faith due to a violation of the rules of evidence, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)