Plaintiff (Attorney Jin-hee et al., Counsel for plaintiff-appellant)

Defendant (Attorney Kim Jae-mo, Counsel for defendant-appellant)

March 24, 2015

1. The Defendant shall implement the procedure for the cancellation registration of transfer of ownership, which was completed by the receipt No. 36250 on August 26, 2013, with respect to each real estate listed in the separate sheet, to Nonparty 2.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. On November 5, 199, the non-party 4 and the non-party 3 completed the marriage report and brought about the plaintiff (date of birth 1 omitted) who is an infant and the non-party 1 (date of birth 2 omitted) on a divorce on May 2, 2007.

B. Nonparty 4 owned the land listed in the separate sheet No. 1 (hereinafter “instant site”). However, around 2003, Nonparty 4 newly constructed a factory building listed in the separate sheet No. 2 (hereinafter “instant factory building,” and completed the registration of initial ownership on August 19, 2003, when the title of each of the real estate listed in the separate sheet No. 1 and No. 2 is collectively referred to as “each of the instant real estate”).

C. As Nonparty 4 died on March 13, 201, the Plaintiff and Nonparty 1 inherited each of the instant real estate. Nonparty 3, as a person with parental authority, sold each of the instant real estate to Nonparty 2 on behalf of the Plaintiff and Nonparty 1 at KRW 30 million on June 30, 201 (hereinafter “instant sales contract”). At the time, the market price of each of the instant real estate was KRW 165,443,50.

D. On July 1, 2011, Nonparty 3 completed the registration of ownership transfer on each of the instant real estates on March 13, 201 and Nonparty 1’s inheritance on March 13, 201. On the same day, Nonparty 3 completed the registration of ownership transfer on July 1, 201, receipt No. 29145 on July 1, 201.

E. On May 18, 2012, the Plaintiff filed a lawsuit against Nonparty 2 claiming for the cancellation of the instant sales contract with Suwon District Court Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Branch Office 2012dan66000, and Nonparty 2 filed a lawsuit claiming the cancellation of the ownership transfer registration under the above Nonparty 2. On August 26, 2013, Nonparty 2 completed the ownership transfer registration (hereinafter “instant ownership transfer registration”) on August 26, 2013, which was based on the sales contract on August 22, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, 6, and 7 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on the cause of the claim

A. Summary of the plaintiff's assertion

The plaintiff and the non-party 3, a person with parental authority, sold each of the real estate of this case, which are the plaintiff and the non-party 1's inherited property, to the non-party 2 at the price significantly below the market price. This constitutes abuse of the right of representation by the person with parental authority, and thus, does not reach the plaintiff and the non-party 1, who is the person having parental authority, or the non-party 3, who did not know of the market price of each of the real estate of this case and did not have experience in real estate transactions, sold each of the above real estate to the non-party 2 at the price significantly low, upon the non-party 2's request, is null and void. Thus, the registration of transfer of ownership in the name of the plaintiff and the non-party 2 based on the above sales contract is registration of invalidation

B. Determination

1) Relevant legal principles

Inasmuch as a legal act by a person with parental authority does not constitute an abuse of parental authority between a person with parental authority and a person with parental authority, it shall be deemed that the person with parental authority’s discretion should be given to take into account the various circumstances surrounding the person. However, with respect to an act of disposal of the property owned by a person with parental authority on his/her own behalf, it constitutes abuse of parental authority under the law granting the person with parental authority’s authority to act for the person with parental authority on behalf of the person with parental authority for the sole purpose of disregarding his/her own interests and promoting the interests of the person with parental authority or a third party (see, e.g., Supreme Court Decisions 9Da19739, Jul. 19, 2009; 209Da3797979, supra.

2) In light of the above legal principles, it is reasonable to see that the Plaintiff and Nonparty 2 were aware of the following circumstances, i.e., Nonparty 3: (a) after the Plaintiff’s house was 7 years of age or around January 200; (b) Nonparty 4 and Nonparty 5 were raising the Plaintiff and Nonparty 1; and (c) Nonparty 6 and Nonparty 2, who leased the factory to Nonparty 4 and operated the sales contract, were able to sell the above real estate to Nonparty 2 in the future on March 13, 201; (d) Nonparty 1 and Nonparty 2, who were requested by Nonparty 4 to increase the ownership transfer registration for the following reasons: (a) Nonparty 2 and Nonparty 3, who were in fact 1 and Nonparty 2, were in violation of the law’s authority to sell each of the above real estate to Nonparty 2; and (e) Nonparty 3, who was in fact in violation of the law’s authority to sell the real estate at the price of each of the above real estate to Nonparty 2 and Nonparty 15.

Ultimately, the sales contract of this case is a contract concluded by the abuse of power by a person with parental authority and its effect does not extend to the plaintiff and the non-party 1. The registration of transfer of ownership completed in the future of the non-party 2 on the ground of the above sales contract is invalid. If the non-party 2 did not acquire any right to each of the real estate of this case, even if the non-party 2 sold each of the real estate of this case to the defendant, the registration in the name of the defendant is invalid in accordance with the substantive legal relationship.

C. Sub-decision

Therefore, with respect to the Plaintiff’s claim in this case seeking the cancellation of the ownership transfer registration of this case which is null and void as the act of preservation on the claim for exclusion of disturbance based on ownership or the joint property, the Defendant is obligated to implement the procedure for cancellation of ownership transfer registration of this case

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

[Attachment]

Judges Kim Jong-tae