(영문) 창원지방법원 2016.04.21 2015나5983 | 리걸엔진

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(영문) 창원지방법원 2016.04.21 2015나5983

소유권이전등기말소

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1. Revocation of the first instance judgment.

2. The Plaintiff:

A. As to the real estate listed in the separate sheet No. 1, Defendant B

Reasons

1. Basic facts

A. The plaintiff is a clan with the purpose of religious rites and mutual friendship among the descendants of I who became adult and who is a member of the clan.

B. Each of the real estate listed in the separate sheet 1, 2, and 3 (hereinafter “each of the instant real estate”) is owned by the Plaintiff. On April 3, 2014, the registration of transfer of ownership was completed under the name of the Defendant B on the ground of sale as of January 24, 2014 with respect to the instant real estate on the ground of sale as of January 24, 2014; the registration of transfer of ownership was completed under the name of the Defendant C Co., Ltd (hereinafter “Defendant C”); and the registration of transfer of ownership was completed under the name of the Defendant C on the ground of sale as of November 27, 2013 with respect to the instant three real estate as of November 27, 2013.

【Ground of recognition】 No dispute exists, Gap 1 and 21's statement, purport of the whole pleading

2. Judgment on the main defense of this case

A. In regard to the assertion that the registration of transfer of each of the instant real estate owned by the Plaintiff to the Defendants should be cancelled as it is null and void, the Defendants asserted that the instant lawsuit was filed by a person who has no legitimate power of representation, or that the lawsuit was filed without a legitimate resolution of the general meeting of clans was unlawful.

B. Determination 1) The litigation conducted by the representative of an unincorporated association that is not a legitimate representative of legal principles shall have retroactive effect at the time of the act when the representative who has lawfully acquired the qualification as the representative confirms the litigation (see, e.g., Supreme Court Decision 2011Da70169, Apr. 13, 2012). The representative of a clan shall be appointed according to the rules or practices of the clan, and if not, the head of the clan or the head of the door shall convene an adult from among the members of the clan and elect them by a resolution of the majority of the members present at the clan, and the head of the clan or the head of the door shall not be appointed by the clan nor by the rules or practices concerning the appointment of a clan, and if there is no rules or practices regarding the appointment, the head of the clan or the

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