Action for confirmation as to whether there is transaction or not and interest in confirmation

If there is a dispute over the sale of a specific object, the validity of the sale is not only one legal fact but also the right or legal relation. Therefore, the existence of the sale itself cannot be the object of the confirmation lawsuit. Therefore, the interested party cannot claim as a lawsuit seeking confirmation whether the sale, which belongs to the past facts, is valid or not, is a mere legal fact that belongs to the past facts.

Article 228 of the Civil Procedure Act

Seoul High Court Decision 4291No49 delivered on February 12, 1959 (Article 56(4)59 of the Civil Procedure Act, Article 56(4)59 of the Civil Procedure Act, Article 572, Article 77-29)

Plaintiff

Defendant

Chuncheon District Court (4294 Civil Code46)

The judgment of the court below is reversed.

The judgment of the first instance shall be revoked.

The plaintiff's lawsuit is dismissed.

All costs of lawsuit shall be borne by the plaintiff.

The plaintiff's agent's grounds of appeal and the reply of the defendant's agent to the grounds of appeal are as written in the appellate brief and the reply subsequent thereto.

The grounds of appeal No. 1 are examined.

In a dispute over the sale of a specific object, the validity of the sale cannot be deemed to be only one legal fact but also a right or legal relation, so it cannot be the subject of a lawsuit for confirmation. Therefore, an interested party cannot file a lawsuit for confirmation as to whether the existence or absence of ownership is a mere legal fact belonging to the past fact, or whether the sale or purchase, which belongs to the past, was effective. According to the contract on June 5, 1954, the Plaintiff did not confirm the existence or absence of ownership from the Defendant’s prior-party 160 square meters in the Central Government 257 square meters and constructed the building on its ground until the removal of the building through an urban planning in April 198, and thus, it is reasonable for the court below to deem that the Plaintiff’s claim for the above 160 square meters portion, which was a legitimate cause for sale or purchase of the building, was an unlawful claim for confirmation against the Plaintiff’s right to purchase and sell the land as a reserved land for sale, and thus, it cannot be seen that the Plaintiff’s claim for the above 16-year interest would have been effective.

The second ground of appeal is examined.

In a case where a lawsuit on the existence of a past fact that cannot be the object of a confirmation lawsuit is filed, whether to dismiss the plaintiff's claim, or whether to reject the claim, the conclusion can be different from each other in the opinion on the right of action and the requirements for the lawsuit, and there is no difference in the understanding that the plaintiff's claim is in fact returned to the plaintiff, regardless of the withdrawal of any opinion, since the res judicata effect on the merits of the plaintiff's claim does not occur, as a party member, first, although the court below decided that the retirement is legitimate, it is a case where the plaintiff has no interest in bringing an appeal against it, the court below decided that the dismissal of the claim is legitimate, and therefore, the ground for appeal that attacks the judgment of the court below on the ground

As seen earlier, the Plaintiff’s ground of appeal cannot be accepted in entirety. However, the judgment of the court below, which ex officio examined the judgment of the court below, declared that the Plaintiff’s claim shall be dismissed, and the next paragraph can be seen as a case where the court of first instance remanded the case to Chuncheon District Court, which is the first instance court, by applying Article 388 of the Civil Procedure Act. Thus, the court below’s decision to dismiss a claim inconsistent with each other and the judgment of remanding the case shall be deemed to have committed an unlawful act inconsistent with the grounds arising out of misunderstanding the legal principles of Article 388 of the Civil Procedure Act and the final judgment of remand and the judgment of remand. Thus, the judgment of the court below in this point shall not be dismissed. Since the judgment of the court below is reversed on the grounds of a violation of the application of the law on the facts established in this case, it shall be decided to self-market a member under Article 407 of the Civil Procedure Act

The reasoning of the judgment on the plaintiff's claim in this case is as stated in the judgment on the ground of appeal No. 1 above, and the plaintiff's claim of the principal lawsuit is unlawful, and thus, the lawsuit is dismissed, and all costs of lawsuit are assessed against the plaintiff as the losing party under Articles 96 and 89 of the Civil Procedure Act. It is so decided as per Disposition by the court below.

Judges Han Sung-soo (Presiding Judge)