In a case where a registration of ownership transfer is sought with regard to the part corresponding to the former parcel number which became extinct due to a merger among the combined land, whether such claim is legitimate (negative)

Article 186 of the Civil Act

Plaintiff

Defendant community credit cooperatives (Attorneys Kim Young-chul et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2008Na8537 Decided May 7, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. On the first and second points

The court below rejected the plaintiff's assertion that the non-party 1, who is the plaintiff's wife, sold the real estate in this case owned by the plaintiff to the non-party 3 without the authority to represent the plaintiff with the non-party 2, and the ownership transfer registration accordingly was made by forging a document confirming the plaintiff's name, and thus the above registration is null and void and the ownership transfer registration in the defendant's name is also null and void. The non-party 1's testimony consistent with the above argument is hard to believe in light of the circumstances as stated in the court below's decision, and it is insufficient to recognize it only with the testimony of non-party 2, and there is no other proof of the plaintiff. In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the presumption of the right

In addition, even if the testimony of the witness of the court below can be acknowledged as the plaintiff's above assertion, the plaintiff's testimony shows that the non-party 1 and the non-party 2 knew of the fact that they sold the real estate of this case to the non-party 3 without legitimate authority without legitimate authority and sought legal response methods, and he first heard the attorney's advice that the non-party 1 is required to file a criminal complaint because the non-party 1's name was found in the name of the real estate of this case, and he did not have any intention to file a criminal complaint, and then requested the non-party 2 to compensate for the damages, and the non-party 2 requested the compensation for damages, and delivered the non-party 2 with a promissorysory note with a face value equivalent to the purchase price of the real estate of this case, and eventually renounced the lawsuit for recovery of the above ownership. Thus, the court below rejected the plaintiff's above assertion that the non-party 1 and the non-party 2 did not raise any objection against the registration of transfer of ownership of the non-party 3.

2. On the third ground for appeal

In a lawsuit seeking the registration of ownership transfer concerning the part corresponding to the former parcel number which becomes extinct due to annexation among the land combined, if the object of the claim is specified only by the former parcel number and the land register before annexation without using the measurement drawing capable of subdividing it, such claim is unlawful as it cannot be deemed as having been specified in the specific object enabling registration. As such, the court shall order ex officio correction and dismiss the lawsuit if it fails to comply with such order, but if the object of the claim is specified by the measurement drawing capable of subdividing it from the time of closing argument at the trial

In light of such legal principles and records, the Plaintiff’s dismissal of the Plaintiff’s claim without ordering the Plaintiff to correct the defect, although the Plaintiff did not specify the part seeking the ownership transfer registration, it was erroneous for the first instance court to specifically specify the object of the claim by means of a measurement drawing that enables the correction of the purport of the claim, and thus, the first instance court’s error and the subsequent error of the first instance court’s dismissal of the Plaintiff’s appeal on the ground that the object of the claim were specifically identified as the object of the claim through the correction of the purport of the claim. Accordingly, the first instance court’s dismissal of the Plaintiff’s appeal without taking account of the illegality of the first instance court’s first instance judgment and the subsequent error of the first instance court’s dismissal of the Plaintiff’s appeal, as alleged in the grounds of appeal.

Meanwhile, despite the above correction of the purport of the claim, the court below stated the purport of the claim before correction of the judgment, but it is clear that the error is, and thus, it does not constitute a ground for correction of the judgment, and thus

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)