Seoul Southern District Court 2016Kadan204107 ( September 23, 2016)

Whether it is illegal against a person without standing to be a party

The lawsuit of this case where the defendant, who is not the person liable for registration, seeks to cancel the registration of the right to lease on a deposit basis, is not a party-qualified one.

Articles 1053 and 1057 of the Civil Act

2016Na61172 Action for the cancellation of chonsegwon

Plaintiff (Appellant)

A

Defendant (Appellant)

Korea

January 12, 2017

January 26, 2016

1. The first instance judgment against the defendant shall be revoked;

2. The plaintiff's lawsuit against the defendant shall be dismissed.

3. Of the total litigation cost, the part arising between the Plaintiff and the Defendant shall be borne by the Plaintiff.

the Gu Office's place of service and place of service

1. Purport of claim

The defendant shall implement the procedure for the cancellation registration of the registration of the establishment of chonsegwon, which was completed on August 14, 1995 by the Gangseo-gu District Court of Seoul Southern District on the real estate attached to the plaintiff as to the registration of the establishment of chonsegwon.

2. Purport of appeal

The same shall apply to the order.

1. The assertion;

(a) Grounds for claims;

The Plaintiff is obligated to cancel the registration of the establishment of the instant chonsegwon on April 10, 2008 and his heir could not be confirmed. The Plaintiff asserted that, as to the instant real estate owned by the Plaintiff, the registration of the establishment of the right to lease on a deposit basis (hereinafter “registration of the right to lease on a deposit basis”) was established on April 28, 1997 by the 18.87 square meters southwest, and the duration of the right to lease on a deposit basis (hereinafter “registration of the right to lease”). However, as the nominal owner of the registration of the right to lease on a deposit basis did not actually pay the right to lease on a deposit basis, even if the right to lease on a deposit basis was paid, since 1995, the extinctive prescription of the right to lease on a deposit basis was completed due to the use and profit-making of the instant real estate since 1995.

B. Defendant’s defense prior to the merits

The defendant asserts that even if there is no evidence that B, the nominal owner of the right to lease on a deposit basis of this case, died on April 7, 2008, the inherited property belongs to the State only after going through the procedures under Articles 1053, 1056 through 1057-2 of the Civil Act according to the heir's existence system. Thus, the plaintiff's filing of a claim for cancellation of the right to lease on a deposit basis against the defendant without going through such procedures against the person liable for registration, as it is unlawful.

2. Determination

A. A lawsuit seeking the cancellation of registration against a person liable for registration, namely, a person who is not a person who loses his/her right or is not a person who is not a person who is subject to any other disadvantage (see, e.g., Supreme Court Decision 2014Da90928, Jul. 23, 2015) is an unlawful lawsuit against a person who is not a party (see, e.g., Supreme Court Decision

B. Therefore, according to the following: (a) whether the Defendant can be deemed a general successor of the Deceased; (b) Party A’s evidence Nos. 3 to 3 (the deceased’s basic certificate, marriage relation certificate, and family relation certificate); (c) the deceased’s parent of the deceased died on February 5, 199; and (d) the deceased’s parent’s death was unknown; (c) the deceased’s parent’s death was unknown; (d) the deceased’s sibling, first degree or lower collateral blood relatives (Article 100(1)3 and 4 of the Civil Act) were not submitted, and thus, their existence could not be completely ruled out; and (e) the deceased’s death was the deceased’s relative (C) the deceased’s relative; and (e) the deceased’s maximum salary class, who is his spouse, could not be recognized as a certified copy of the deceased’s property registration system after the enactment of Article 1053, 1056 or 1057-2 of the Civil Act.

C. Therefore, the instant lawsuit seeking the cancellation procedure for the registration of chonsegwon against the Defendant, who is not the person liable for registration, is unlawful against the person who is not the party liable for registration, and the Defendant’s defense prior to the merits is with merit.

3. Conclusion

If so, the plaintiff's lawsuit of this case against the defendant is unlawful and thus, it shall be dismissed. The judgment of the court of first instance against the defendant, which has different conclusions, is unfair, so it shall be revoked and the plaintiff's lawsuit against the defendant shall be dismissed. It is so decided as per Disposition.