The case holding that donation is null and void as an abuse of parental authority

The plaintiff's legal representative, at the time of donation of real estate to the defendant, has already reached the age of majority when 19 months have passed since it had already been passed since the plaintiff had strongly opposed to the above disposal, and the above disposal was not for the plaintiff, but for the defendant, who was the largest child of the legal representative, and was not paid any consideration due to the above disposal, the above donation is an abuse of parental authority, and its effect does not extend to the plaintiff.

Article 2 of the Civil Act, Article 924 of the Civil Act

Supreme Court Decision 68Meu27 delivered on September 17, 1968 (Law No. 4361 delivered on September 17, 1968, Supreme Court Decision 924(4)616 of the Civil Act)

Plaintiff

Defendant

Daejeon District Court (78Gahap301)

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

With respect to the real estate recorded in the attached list, the defendant will implement the procedure for the cancellation registration of transfer of ownership as set forth in No. 830 on February 2, 197, which was received on February 2, 1977.

Litigation costs shall be borne by the defendant.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

Despite the fact that the ownership transfer registration has been completed with respect to the real estate recorded in the separate list (hereinafter referred to as the "real estate in this case"), there is no dispute between the parties concerned, and Gap evidence Nos. 1, 2 (No. 3 (Judgment), Gap evidence No. 5-1 through 5 (No. 7) and Eul evidence No. 8-1 through 3 (No. 4). The plaintiff and the defendant purchased real estate from the non-party No. 4 and the non-party No. 6-1 to the defendant's non-party No. 6-1 for the same reason as the non-party No. 96's testimony, part of the court below's record No. 8-1 and No. 3 (No. 4) and the non-party No. 96-1 for the plaintiff's non-party No. 4 and the non-party No. 5-party No. 96, respectively, and the plaintiff's death from the non-party No. 1 to the non-party No. 4 and the defendant No. 96-party No.

According to the above facts, at the time of the donation of this case to the defendant by Nonparty 4, the plaintiff had already reached the age of majority when 19 years have passed since it had already been left on May, 19, and the plaintiff strongly opposed to the above disposal act, and the above disposal act is for the defendant, which is a major child of Nonparty 4, not for the plaintiff but for the plaintiff, and the plaintiff was not paid any consideration for the above disposal act. Under the above circumstances, it is reasonable to view that the act of donation of this case to the defendant as the legal representative of the plaintiff in this case by Nonparty 4 to the defendant does not affect the plaintiff.

Thus, the registration of transfer of ownership in this case made before the defendant is the registration of invalidation which has caused the cause.

However, the defendant asserts that the real estate of this case was purchased by Nonparty 4 and trusted in title to the plaintiff, and that the above title trust was terminated and the registration of ownership transfer was completed in the front of the defendant. However, the evidence corresponding thereto is not accepted above, and some testimony of Nonparty 7, 8, and 9 is insufficient to deem that Nonparty 4 trusted the real estate of this case to the plaintiff. Thus, the above argument is groundless.

The defendant asserts that, even if the non-party 4 donated the real estate of this case to the plaintiff, since the donation is a contract, it cannot be deemed that the plaintiff had the intention of consent to the plaintiff as the plaintiff's age was 3 to 9 years, and therefore, the above donation contract was not constituted. However, since the minor can perform a legal act through his legal representative, the above donation contract was effective by the non-party 4's act of representation, who is the plaintiff's person with parental authority, and thus, the defendant

In other words, even if the non-party 4 donated the real estate of this case to the plaintiff on May 197, the defendant argued that the non-party 4 at the time when there was a criminal act against the non-party 4's donor and that the non-party 4 would cancel the above donation, and even if not, the non-party 4 would cancel the above donation as a service of the preparatory document dated February 9, 1981. Thus, the cancellation of the donation contract by the act of the donee is invalid as to the part already performed. The execution of the real estate donation contract is detrimental to the registration of transfer, and since the non-party 4 already donated the real estate of this case to the plaintiff and completed the registration of transfer of ownership as the plaintiff at the time of the cancellation as alleged by the defendant, the above assertion by the defendant is groundless.

In addition, even if the non-party 4 donated the real estate in this case to the plaintiff, the plaintiff can not be a farmer because he had no mental capacity to the age of 3 through 9, and since there is no farmland registration that does not entail farmland certification, the above registration shall not be deemed to be a farm. Thus, it shall be presumed that the plaintiff's non-party 4's family member, who is his own owner at the time of the acquisition of the real estate in this case, is the farm household, and the non-party 4's family member cannot be a farm household with no mental capacity to be a farm. Thus, since the plaintiff's assertion that the registration of transfer of the ownership of the farmland in this case was not made, it shall be presumed that the plaintiff's ownership registration was already submitted at the time of the acquisition of the real estate in this case, and that there was no ownership registration of the above real estate in this case.

Ultimately, since the registration of transfer of ownership in the name of the defendant with respect to the real estate in this case, which was made by the abuse of parental authority by the non-party 4, is the registration of invalidity, the plaintiff's claim for this case shall be accepted with merit. Accordingly, the original judgment with the same conclusion is just, and therefore the defendant's appeal is without merit, and it is so decided as per Disposition with the burden of the losing defendant.

Judges Yoon Il-young (Presiding Judge) Kim Jong-young