[1] The scope of human resources with the execution of the real estate delivery order against the debtor

[2] Whether it is unlawful to exclude the husband's possession, which is a joint occupant of the real estate, from the execution of an order to deliver the real estate to the wife, who is the debtor (negative)

[1] Where the other party to the order of delivery of real estate is the debtor, the executory power of the order of delivery shall extend to the person who is identical with the debtor, such as the debtor and one household member who are not living independently.

[2] It shall not be deemed an unlawful deprivation of possession on the ground that a person does not have the opposing power at the time of execution of a lawful order of delivery of real estate against the wife, but has excluded the co-ownership of the husband who had jointly occupied the real estate against his will while forming the same household as the wife.

[1] Article 647(1) of the Civil Procedure Act / [2] Article 204 of the Civil Act, Article 647(1) of the Civil Procedure Act

[1] Supreme Court Order 73Ma734 decided Nov. 30, 1973 (No. 21-3, No. 210) / [2] Supreme Court Decision 62Da919 decided Feb. 21, 1963 (No. 11-1, No. 121)

[Judgment of the court below]

Park Jong-gu

Seoul District Court Decision 95Na47953 delivered on June 4, 1996

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

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal

In light of the records, although the plaintiff, as the head of November 28, 198, completed a move-in report under the Resident Registration Act on the apartment of this case as the head of the household, and resided in the apartment of this case with Nonparty 1, who is his wife, etc., but did not recognize that the lease contract was concluded as asserted by the plaintiff between the plaintiff and Nonparty 2, the owner of the apartment of this case, the fact-finding and decision of the court below are just and acceptable, and there is no error of law such as misconception of facts in violation of the rules of evidence as alleged in the grounds for appeal, or misunderstanding of legal principles as to the presumption of registration and probative value of the disposal document, etc.

2. On the second ground for appeal

If the other party to the order of delivery of real estate is the debtor, the executory power of the order of delivery shall be extended to the person who is identical with the debtor, as well as the debtor and the family members who do not live independently.

However, the court below rejected the above preliminary claim on the ground that the plaintiff, although the above non-party 2 had opposing power to complete the resident registration after being leased the apartment of this case from the above non-party 2 and the non-party 1, the delivery order on the apartment of this case, which the above non-party 2 and the non-party 1 as the respondent, has no effect on the plaintiff, was illegally deprived of the possession of the apartment of this case, and the plaintiff, in accordance with the execution of the above delivery order, went away from the defendant. Thus, the plaintiff is not a lessee with opposing power at the time of the above execution, and the non-party 1's husband is jointly occupying the apartment of this case with the above non-party 1 as the above non-party 1's husband. Thus, the plaintiff's joint possession with the above non-party 1, which is closely related to the above non-party 1, cannot be viewed as an illegal deprivation of the plaintiff's possession of the plaintiff's possession. It is not erroneous in the misapprehension of legal principles as to the possession and joint occupant.

3. Therefore, the appeal is dismissed and all 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)