2015Da40609 Registration of transfer of ownership

A (Name A: N)

B

Suwon District Court Decision 2014Na39838 Decided June 25, 2015

October 29, 2015

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

1. In a case where a party’s assertion is clearly excessive due to negligence or misunderstanding, or where the party’s assertion is unclear or incomplete or contradictory from a legal point of view, the court shall actively exercise its right of explanation and give the party an opportunity to state his/her opinion. If a trial based on a legal point of view where the party was unable to expect at all, thereby causing a misappropriation to either party, the court is unlawful as it fails to exhaust its duty of explanation or intellectual (see, e.g., Supreme Court Decisions 2001Da11055, Jan. 25, 2002; 2013Da25217, Oct. 27, 2014).

2. Review of the lower judgment and the record reveals the following facts.

A. On November 27, 2009, the Plaintiff’s agent Eul and the Plaintiff transferred ownership of Q Q 854m2 and general accommodation facilities on the third floor of the above ground No. 854m2 and the above ground No. 854m2 (hereinafter “the Plaintiff’s real estate”) to the Defendant, and additionally paid KRW 60 million to the Plaintiff, and the Defendant entered into an exchange contract between the Plaintiff and the Plaintiff (hereinafter “instant exchange contract”) with the content that the ownership of each real estate listed in the attached list of the judgment below (hereinafter “instant real estate”) and the ownership of two lots of real estate (hereinafter “the instant exchange contract”).

B. The Defendant’s written brief dated 10, 2014, which was stated in the lower court, stated as follows: “The actual owner of the Plaintiff’s real estate was transferred to U.S. on July 19, 2010”; “The instant real estate owned by the Defendant was awarded a successful bid on March 6, 2014 during the lower court’s lawsuit by means of voluntary auction and owned the instant real estate,” and “the Plaintiff’s real estate is a real estate, the exchange of which is impossible; “The Plaintiff’s claim is a claim for which the interest of lawsuit is already lost; it is a claim for which the party’s qualification is nonexistent; and “the Plaintiff’s claim shall be dismissed.”

C. According to the records in the copy of the register (No. 3-1 and 2) concerning the real estate on the part of the Plaintiff, which the Defendant submitted as evidence at the lower court, it can be confirmed that the Plaintiff acquired the ownership of the real estate on the part of the Plaintiff on August 13, 2014, on the ground of sale and purchase of the copy of the register (No. 2-1 through 5). According to each of the records in the copy of the register (No. 2-1 to 5), the Defendant lost the ownership of the real estate on February 21, 2014, and acquired the ownership of the real estate in this case by 0.

3. In light of the legal principles as seen earlier, since the Defendant alleged that the ownership of each real estate which is the object of the instant exchange contract has been transferred to a third party and submitted documentary evidence concerning this. In such a case, the lower court should have given the Defendant an opportunity to state his/her opinion on the legal matters, which are deemed clear that the Defendant’s legal assertion stated in the preparatory document dated December 10, 2014 is merely the defense of safety or the purport of the defense on the merits, and clearly stated the legal nature of the case, and that it was against the Defendant’s non-existence, negligence, or misunderstanding, in view of the degree of litigation.

4. Nevertheless, the court below rejected the above legal claims stated in the briefs dated December 10, 2014 by viewing them as safety defense only, without reaching the court below's determination. Such decision of the court below was taken.

The court below did not properly exercise its right of explanation and did not properly examine the case because it did not give the parties an opportunity to state their opinions on legal matters, and such mistake of the court below affected the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

A person shall be appointed.