[1] The case holding that the plaintiff dismissed the claim on the ground that it was directly seeking cancellation of registration, in case where the plaintiff requested the defendant to directly implement the procedure for cancellation of registration made in its name, but all facts constituting the premise for the exercise of subrogation right are asserted due to the cause of the claim

[2] The case holding that the contractor concurrently holds the position of the transferor of the building and the position of selling the building as the representative of the contractor and the position of selling the building as the representative of the subcontractor, on the ground that the contractor had to transfer the ownership of the building in lieu of the payment of the construction price, and sold the building to another person on behalf of the contractor and agreed to pay

[1] The case holding that the plaintiff dismissed the claim on the ground that it was directly seeking cancellation of registration, in case where the plaintiff requested the defendant to directly implement the procedure for cancellation of registration made in its name, but all facts constituting the premise for the exercise of the subrogation right due to the cause of the claim are asserted.

[2] The case holding that the contractor concurrently holds the position of the transferor of the building and the position of selling the building as the representative of the subcontractor, on the ground that the contractor agreed to transfer the ownership of the building on behalf of the contractor in lieu of the payment of the contract price and sold the building on behalf of the contractor in accordance with the delegation of the contract price and agreed to appropriate the price for the construction price

[1] Article 404 of the Civil Code, Article 126 of the Civil Procedure Act / [2] Articles 105 and 114 of the Civil Code

[2] Supreme Court Decision 94Da41935, 41942 decided Oct. 25, 1996 (Gong1996Ha, 3398)

Plaintiff (Attorney Yellow-gu, Counsel for the plaintiff-appellant)

Defendant 1 and one other

Seoul High Court Decision 98Na29393 delivered on May 26, 1999

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below, based on the evidence adopted in its judgment, concluded that 7 households (hereinafter referred to as "the building of this case, etc.") including the plaintiff's (hereinafter referred to as "the building of this case, etc.") were to transfer the ownership of the building of this case among the apartment houses of this case (hereinafter referred to as "the building of this case, etc.") under the name of the defendant 1, and that the plaintiff purchased the building of this case from the non-party 1 on November 25, 1997, on the part of the owner of the above apartment house of this case, the non-party 1, including the defendant 1, and the owner of the non-party 1, the apartment house of this case (hereinafter referred to as "owner of non-party 1, etc.") purchased the building of this case directly from the non-party 1 and the owner of non-party 1, etc. of non-party 1, who purchased the building of this case on the part of the construction price. The plaintiff's right to register of this case is invalid.

2. As to the ground of appeal on the claim for cancellation registration

However, according to the records, although the plaintiff requested the defendants to directly implement the procedure for cancelling the registration made in the name of the defendants with respect to the building in this case, the plaintiff asserted that the plaintiff purchased part of the apartment house, including the building in this case, from the non-party 2 who was delegated the right to sell the building in this case in lieu of the payment of the construction price (record 159), the court of first instance and the court below's argument that the plaintiff purchased the above share transfer registration made in the name of the defendant 1 in lieu of the payment of the construction price (record 159), it is only disputed whether the parties concerned are legitimate, and there was no dispute as to whether the plaintiff has the right to directly exercise the right to claim cancellation registration of each of the above registrations made in the name of the defendants, and the court has also rejected the plaintiff's claim on the ground that the plaintiff is not an interested party on the register that the plaintiff can seek cancellation of the registration directly against the defendants.

However, in filing a claim against the Defendants for the cancellation of registration made in their names, although the Plaintiff does not explicitly state that the owner of a tenement house is subrogated, such assertion does not constitute the purport of exercising the right of subrogation as above. In addition, even though the Plaintiff asserted all the factual relations, which are the premise for exercising the right of subrogation as seen above, as seen in the grounds for the Plaintiff’s claim, as seen above, the court did not tang the intent of the Plaintiff’s assertion directly against the Defendants by tanging it in the form of the claim, and instead, did not err by neglecting the exercise of the right of explanation and thereby adversely affecting the trial. The dismissal of all the claims by deeming that the Plaintiff seeks cancellation of the registration directly against the Defendants, and by neglecting the exercise of the right of explanation. The part pointing this out is with merit.

3. As to the ground of appeal on the claim for share transfer registration

According to the reasoning of the judgment below, the court below rejected the part of the plaintiff's claim for the registration of the transfer of equity interest to the defendant as to the building of this case on the ground that there is no evidence to prove that defendant 1 agreed to the plaintiff to complete the registration of transfer of equity interest in this case.

However, in light of the evidence admitted by the court below, it can be seen that the non-party 1 agreed to acquire ownership of the building of this case from the owner of the apartment house in lieu of the construction price of this case. However, according to the statement of Nos. 1 and No. 8-1 and No. 11 (certificate of personal seal impression) adopted by the court below, and the testimony of non-party 1 of the witness of the court below that did not reject by the court below, the owner of the apartment house of this case agreed to immediately provide the owner of this case with the right to sell the building of this case, etc. of this case who is the constructor of the reconstruction construction of this case, and the constructor demanded the owner of the apartment house to submit the necessary documents in order to exercise his right. Accordingly, the owner of the apartment house of this case agreed to provide the plaintiff with the documents necessary for the registration of ownership transfer in the name of the plaintiff, such as a certificate of personal seal impression for real estate sale, which made the plaintiff the purchaser of this case as the purchaser of this case.

In light of the above circumstances, Nonparty 1 decided to transfer the ownership of the instant building, etc. in lieu of the payment of the construction cost of the instant building from the owner of the instant apartment house, but on the other hand, pursuant to the delegated right of sale, sold the instant building, etc. on behalf of the owner of the instant apartment house on behalf of the owner of the instant apartment house and appropriated for the payment of the construction cost. Thus, Nonparty 1 has the status of the transferee of the instant building, etc. and the status of selling the instant building as the representative of the

Therefore, since the sales contract for the building of this case concluded between the plaintiff and the non-party 1, an agent of the owner of the apartment house, is effective to the owner of the apartment house, the owner of the apartment house including the defendant 1 bears the obligation to implement the registration procedure for transfer of each share in the building of this case to the plaintiff.

Nevertheless, the court below rejected this part of the plaintiff's claim on the ground that there is no evidence to acknowledge that Defendant 1 agreed to complete the registration of transfer of his share in the building of this case directly to the plaintiff by misunderstanding the purport of the delegation agreement as above, and therefore, the court below did not err in the misapprehension of the rules of evidence or in the misapprehension of the parties' intent, thereby affecting the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

4. Therefore, without further proceeding to decide on the remainder of the 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.

Justices Lee Yong-woo (Presiding Justice)