[Judgment of the court below]

Defendant 1 and one other (Attorney Park Jong-young, Counsel for the defendant-appellant)

October 25, 2007

1. The Plaintiff:

A. As to shares of 1/2 of each of the real estate listed in the separate sheet No. 2, Defendant 1:

B. As to shares of 1/2 of each real estate listed in the separate sheet Nos. 1 and 3, Defendant 2:

In December 22, 1995, each procedure for the registration of ownership transfer is implemented.

2. The costs of lawsuit are assessed against the Defendants.

The same shall apply to the order.

1. Facts of recognition;

A. Defendant 1 divided the forest land of 7,058 square meters (hereinafter referred to as “instant land”) into each land listed in paragraph (2) of the attached Table No. 2 on December 30, 2004, and Defendant 1’s wife Defendant 2 owned each land listed in the attached Table No. 1 and 3 (hereinafter referred to as “instant land”) in Suwon-si, Suwon-si, Suwon-si, ○○○dong (hereinafter referred to as the “number omitted); and Defendant 1’s wife Defendant 2 owned each of the instant land listed in the attached Table No. 1 and 3 (hereinafter referred to as “instant land”). The instant land and the instant land No. 2 and the instant land No. 1 and 3 together, owned each of the instant land.

B. On December 22, 1995, the Plaintiff and Nonparty 1 jointly purchased each of the instant lands from the Defendants, with the purchase price of KRW 1,500,000,000,000, and the down payment of KRW 150,000,000 and the intermediate payment of KRW 630,000,000 were paid on the date of the contract, and the remainder of KRW 720,00,000 was paid on the date of the contract, and the remainder of KRW 720,00,00 was paid at the same time with the implementation of the procedures for the delivery of land and the transfer registration of ownership (hereinafter “instant sales contract”). (However, Defendant 1 entered into a contract on behalf of Defendant 2).

C. Since then, the Plaintiff and Nonparty 1 paid to the Defendants a total of KRW 1,490,000,000 for the instant purchase price as indicated in the following table (the Plaintiff paid KRW 1,240,000,000 for the remainder of KRW 250,000,000, respectively).

본문내 포함된 표 지급자 지급일자 지급금액 지급내용 원고 1995. 12. 22. 780,000,000원 계약금 및 중도금 전액 원고 1996. 2. 29. 160,000,000원 잔금 일부 소외 1 1996. 4. 2. 100,000,000원 잔금 일부 소외 1 1996. 6. 7. 150,000,000원 잔금 일부 원고 1996. 8. 12. 300,000,000원 잔금 일부 합계 ？ 1,490,000,000원 ？

D. At the time of the instant sales contract, the Plaintiff and Nonparty 1 agreed to share KRW 750,00,000 for the purchase price of KRW 1,50,000 and to share KRW 1/2 of each of the instant land. Nonparty 1 failed to prepare the purchase price, the Plaintiff and Nonparty 1 agreed to pay KRW 300,000 for the purchase price of KRW 1,987,000 for the purchase price of KRW 9,987,00 for the share of KRW 300,00 for the share of KRW 3,987,00 for the share of KRW 3,000 for the share of KRW 3,987,00 for the share of KRW 39,987,00 for the share of KRW 3,00 for the share of KRW 9,987,296, Feb. 9, 196.

E. However, the non-party 1 borrowed KRW 150,00,00 from the non-party 6 on April 2, 1996 and offered the land of this case as a security for the above loan obligation with the consent of the defendant 1, but the loan was not returned, and the non-party 6 applied for an auction to enforce a security right as to the land of this case as Suwon District Court No. 97 Mad4028 on January 21, 1997. The decision to commence auction was made on January 21, 1997. The non-party 1 paid KRW 237,00,000 on behalf of the non-party 6 on behalf of the non-party 1 and ordered the non-party 6 withdraw the above request for auction. Accordingly, according to the agreement between the non-party 1 and the non-party 1 on May 17, 1997 to include the above substitute payment in the purchase price of this case, the remaining amount including the payable amount and the existing KRW 4000,0000.

F. Meanwhile, around February 2003 and around November 201 of the same year, Nonparty 1 agreed that, if Nonparty 4 and 6, each of the creditors of the loans to himself, were not returned by the due date, they would transfer one-half of the respective lands of this case. Ultimately, they could not repay each of the above borrowed money. Nonparty 4 and 6 filed a lawsuit against the Defendants by subrogationing Nonparty 1 on the ground of the above payment agreement. On November 30, 2006, Seoul High Court 2005Na95756, and on November 30, 2006, “the Defendants were paid KRW 247,00,000 from Nonparty 1; Defendant 1/2 of the instant land of this case; Defendant 2 was subject to the first/2 of the instant land of this case; and Defendant 3, 494,994/296 of the instant land of this case; and Defendant 1 was dismissed by the judgment of the first instance court.”

[Judgment of the court below] The plaintiff's ground of appeal Nos. 1 through 7 (including each number), each of the plaintiff's ground of appeal No. 1

2. Determination:

A. Determination on the cause of the claim

According to the facts found in Paragraph 1, the Plaintiff and Nonparty 1 jointly purchased each of the instant land from the Defendants, and instead, the Plaintiff and Nonparty 1 bear KRW 1,050,00,000 out of the purchase price (=750,000,000 + KRW 300,000 + KRW 300,000), respectively, 24,968 (=14,981 + 9,987)/29,962 of the instant land and the third land. Thus, the Defendants were obligated to complete the registration of ownership transfer at the agreed share ratio between the Plaintiff and Nonparty 1, while receiving KRW 1,737,00,00 from the Plaintiff and Nonparty 1.

However, the Plaintiff already paid KRW 1,240,000,000 in excess of its own share of KRW 1,050,000 (i.e., KRW 750,000 + KRW 300,000,000) out of the purchase price of this case to the Defendants (Seoul High Court Decision 2005Na95756, 247,000 shall be paid from Nonparty 1 in accordance with the Seoul High Court Decision 2005Na95756). Defendant 2 had already completed the registration of ownership transfer in the middle of the 3 land of this case with respect to the Plaintiff’s share of KRW 9,987/29,962, the Plaintiff had already completed the registration of ownership transfer in the middle of the 3 land of this case, and Defendant 1 had the obligation to implement the registration of ownership transfer for each of the shares of KRW 1/2 out of the land of this case due to the agreement between the Plaintiff and Nonparty 1.

B. Determination as to the defendants' assertion

As to this, the defendants asserted that the plaintiff, non-party 1, and the defendants owned the plaintiff on October 22, 2004 and November 23, 2004 on two occasions, and the third land of this case, the remainder (19,975/29,962 shares) excluding the part for which the ownership transfer registration has already been made in the future in the name of the racing lowest Clan from among the third land is maintained as it is by the defendant 2, and the non-party 1 agreed to waive all rights to each of the land of this case. Thus, the part for which the plaintiff's claim for 1/2 of the third land of this case against the defendant 2 is groundless.

According to the evidence No. 1-1 and No. 2 of this case, although it is difficult for Nonparty 1, the wife of Nonparty 2, the plaintiff, and the defendant 1 to be the representative of the non-party 1, and the part other than the part registered in the name of the Preferred Meeting on Oct. 22, 2004 and Nov. 23, 2004, the defendant 2 maintains ownership as it is, and the land No. 1 and No. 2 of this case shall be transferred to the plaintiff, and there are no shares owned by the non-party 1 (hereinafter "the agreement of this case"), it is hard to find that the non-party 1 did not have the right to represent the non-party 2 as an act of establishing and selling the right to represent the non-party 1, 2, 3 and 5, and that the non-party 1 could not have any other right to represent the non-party 2 as an act of establishing and selling the right to represent the land of this case, and thus, it cannot be acknowledged that the non-party 1 had no right to purchase and sell the land of this case.

In this context, in applying the legal principles of Article 137 of the Civil Act that “if a part of the legal act is null and void, it shall be null and void, but if it is deemed that the remaining part is not null and void even if there is no invalid part, it shall be null and void.” Moreover, according to Seoul High Court Decision 2005Na95756, the ownership of 1/2 of the land Nos. 1 and 2 was transferred to Nonparty 1, and shall be transferred to Nonparty 4 and 6 again. Accordingly, the Plaintiff cannot acquire ownership of the entire land No. 1 and 2. Accordingly, the Plaintiff cannot obtain ownership of the entire land of this case. Under this circumstance, it is difficult to find that the Plaintiff, who already paid the purchase price of at least one of the purchase price of this case with Defendant 2, would have agreed to recognize the ownership of Defendant 2 of the land No. 3 and the remaining part shall not be null and void, and there is no evidence to deem the agreement to be null and void between the Plaintiff and the Defendants 1 and the Defendants 2 of this case.

Therefore, the above assertion by the Defendants, which is premised on the validity of the agreement between the Plaintiff and the Defendants, is without merit.

3. Conclusion

Therefore, Defendant 1 is obligated to perform the registration procedure for ownership transfer on the ground of sale on December 22, 1995, with respect to one-half portion of the land No. 2 of this case, and one-half portion of the land No. 1 and 3 of this case, and each claim against the Defendants of this case is accepted on the ground that each claim against the Defendants of this case is with merit.

[Attachment of List]

Judges Kim Woo (Presiding Justice)