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(영문) 대법원 2016.12.29 2016다10018
소유권이전등기말소등
Text

The judgment below

The part concerning the second preliminary claim is reversed, and this part of the case is remanded to the Busan High Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 3, the lower court determined that the Defendant’s completion of the registration of ownership transfer on real estate Nos. 5 through 10 of the instant case was insufficient to recognize as a registration of invalidity of cause by altering a testamentary document.

Examining the record in accordance with the relevant legal principles, the lower court’s aforementioned determination is justifiable.

There is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal doctrine on the validity of notarial deeds.

2. As to the first ground for appeal, the court below held that (1) with respect to the second preliminary claim against the claimant for the return of legal reserve, the defendant had been managing his account according to the deceased's will while operating the funeral business with the deceased prior to around 2000; (2) during the above period, the details of transfer from the deceased's account to the defendant or G account are extremely limited to parts; and (3) there is a high possibility that the deceased's account might be mixed with the deceased's and the defendant's property; (3) it is difficult to distinguish the withdrawal amount claimed by the plaintiff; (4) it is difficult to know that the defendant used part of the withdrawal amount for personal purpose or living expenses; and (5) even if the defendant used it for his personal purpose while managing the deceased's account, it appears that the defendant used the deceased's funds to assist the deceased and to pay for the deceased's business expenses or taxes imposed on the deceased's business expenses or the deceased's business expenses.

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