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(영문) 대법원 2020.02.27 2017다15362
토지인도 등
Text

All appeals are dismissed.

The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff) by aggregating the principal lawsuit and counterclaim.

Reasons

The grounds of appeal are examined.

1. As to the assertion of violation of the principle of pleading and the duty of explanation regarding the conjunctive claim on the merits of the lawsuit, the lower court cited the allegation that the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”), as the owner of each of the instant land, may claim against the deceased C’s heir, who is the owner of the instant land, for the removal of the house and the transfer of the site thereof. As such, the conjunctive claim on the merits that the Plaintiff seeks the removal of the house from the housing site against B, who occupies the housing by subrogation of the deceased C’s heir, was included in the purport of directly claiming the removal of the disturbance based on the ownership of the land against B.

Examining the relevant legal principles and records, the lower court did not err in its judgment by violating the principle of pleading and the duty of explanation, contrary to what is alleged in the grounds of appeal.

2. The court below held that the presumption of ownership transfer registration completed under the Act on Special Measures for the Transfer Registration of Real Estate Ownership in the name of the network D with respect to each of the lands of this case is not broken solely because the purchaser, who was the cause of acquiring the right of the network D, later than the date of death of the network C, and that the former purchaser, who was the cause of acquiring the right of this case, decided to own the ownership of the network D through the division agreement of inherited property between the heir of the network C, was not proven to be true, and thus, the presumption of presumption is not reversed as it is not proven to be true.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the presumption power of the registration of the transfer of ownership in the name of the network D, or by violating the rules of evidence.

3. Therefore, all appeals are 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 on the bench.

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