(영문) 부산지방법원 2017. 10. 19. 선고 2016나55742 제6민사부 판결

3. The costs of appeal incurred by intervention shall be borne by the independent party intervenor, and the costs of appeal by the defendant respectively.

Purport of claim and appeal

1. Purport of claim

A. Main suit: The Defendant received KRW 115,00,000 from the Plaintiff at the same time, and simultaneously implement the registration procedure for transfer of ownership based on the sale contract on September 3, 2014 with respect to the Plaintiff with respect to the land of KRW 73 square meters in Busan Dong-gu, Busan (hereinafter “instant land”).

(b) Intervention by an independent party (in the case of a trial, an intervenor filed an application for intervention by an independent party);

As to the instant land:

1) The Plaintiff confirmed to the intervenor of an independent party that the ownership based on the purchase and sale as of September 3, 2014 against the Defendant exists with the authority of the former registration authority, and confirmed the existence of the right of the former registration authority.

2) At the same time, the Defendant receives KRW 115,00,000 from an independent party intervenor, and simultaneously executes the registration procedure for transfer of ownership based on the sale as of September 3, 2014 to the independent party intervenor.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as stated in the reasoning of the judgment of the court of first instance, except for adding a judgment on the legitimacy of a request for intervention by an independent party, and thus, this is acceptable in accordance with the main sentence of Article 420 of

2. Determination on the legitimacy of the request for intervention by an independent party

A. Summary of the application for participation by the independent party intervenor

1) The plaintiff is a corporation engaged in the construction and construction execution business, and an independent party intervenor (hereinafter referred to as the "participating").

On September 3, 2014, a service contract for supporting the business affairs of a cooperative was concluded with the Defendant on behalf of the Intervenor for the instant land included in the local housing construction site (hereinafter “instant sales contract”). The instant sales contract was duly concluded, and the Defendant received total of KRW 35,00,000 from the down payment and the remainder, and the Intervenor obtained authorization for establishment around February 27, 2015, and at the same time, the Defendant was paid from the Intervenor for KRW 15,00,000 (= KRW 150,000,000 - KRW 35,00,000,000).

2) The Plaintiff entered into a sales contract with the Defendant on behalf of the Intervenor pursuant to the above service contract, and the actual purchaser of the instant land was an intervenor. Thus, the Intervenor sought confirmation that the Plaintiff’s right to claim for ownership transfer registration of the instant land was an intervenor.

B. Determination

1) Whether the application for intervention in the claim for confirmation of ownership transfer registration is legitimate

A) An application for intervention by an independent party is practically a new lawsuit, and thus a legitimate litigation requirement must be satisfied. On the other hand, a lawsuit for confirmation is allowed when it is the most effective and appropriate means to resolve the dispute, and a lawsuit for confirmation is immediately filed to achieve a certain purpose, barring special circumstances, to the effect of uneasiness removal, barring special circumstances (see, e.g., Supreme Court Decision 2005Da60239, Mar. 9, 2006).

B) On the premise that the Intervenor had the right to seek ownership transfer registration under the instant sales contract to oneself, it is not a final resolution method of dispute to seek confirmation of the Plaintiff’s right to claim ownership transfer registration on the premise that the Intervenor sought performance against the Defendant.

As such, there is no benefit of confirmation. Accordingly, the Intervenor’s application for intervention in this part is unlawful.

2) Whether the application for intervention in the part of the claim for ownership transfer registration is lawful

A) Whether participation in the petition for right is lawful

(1) In order to intervene in the proposal of right under the former part of Article 79(1) of the Civil Procedure Act among participation by an independent party, an independent party intervenor must first make a claim that is incompatible with the Plaintiff’s claim against both parties to the lawsuit intended to participate or both parties to the lawsuit, and the claim may be established by his/her own assertion, in addition to having the legal interest (see, e.g., Supreme Court Decision 2009Da42130, Oct. 15, 2009; 42147, 42154, 42161).

(2) On the other hand, the plaintiff's right to claim the transfer registration of ownership against the defendant and the intervenor's right to claim the transfer registration of ownership against the defendant are based on a single contract, unlike the case of double selling, etc. for which the participation of the parties is not recognized, and one party's right to claim the transfer registration is not recognized. Thus, the other party's right to claim the transfer registration is not compatible with each other. Thus, it is legitimate as a participation in the claim

B) Whether the interests of the court were infringed

(1) An independent party intervention has the nature of an action in substance (see, e.g., Supreme Court Decision 93Da43682, 51309, Feb. 22, 1994). Thus, an independent party intervention application filed in the appellate court without the consent of the other party is not permitted inasmuch as the other party to the intervention has lost the interests of the court at the first instance trial or is likely to significantly delay the litigation procedures, barring the circumstances where the first instance court sufficiently deliberated on the substantial issues that form the basis of an independent party intervention application.

(2) The sales contract of this case, which forms the basis for applying for intervention, is the intervenor.

The issue that was concluded on behalf of an intervenor was raised only in the first instance without a trial in the first instance, and the trial in the first instance constitutes a violation of the interests of the court in the first instance against the plaintiff and a substantial delay in the proceedings. However, since the plaintiff did not consent to the intervenor's application for intervention, the application for intervention in this part filed by the intervenor in the first instance is unlawful (the application for intervention in the part of the claim for confirmation is also based on the same reasons).

3. Conclusion

If so, the plaintiff's main claim against the defendant is justified and the plaintiff's application for intervention filed in the trial shall be dismissed. The judgment of the court of first instance on the plaintiff's main claim is just in conclusion, and the defendant's appeal is dismissed and the defendant's application for intervention is dismissed. It is so decided as per Disposition.