In a case where: (a) the registration of transfer of ownership was completed in the name of B, who is a child, due to the donation of the real estate owned by A; (b) at the expiration of about ten (10) years from the registration date, Byung et al., who was another child of B, had no mental capacity due to brain color, etc. at the time of donation; (c) and (d) sought the cancellation of the registration of Eul’s name, which was completed in relation to his/her share of inheritance by asserting that the registration of the registration of the name

갑 소유 부동산들에 관하여 증여를 원인으로 자녀인 을 명의로 소유권이전등기가 마쳐졌는데, 등기일로부터 약 10년이 지난 시점에 갑의 다른 자녀인 병 등이 갑은 증여 당시 뇌경색 등으로 의사능력이 없는 상태였으므로 을 명의의 등기는 위조된 증여계약서에 의하여 이루어진 원인무효의 등기라고 주장하면서 자신들의 상속분에 관하여 마쳐진 을 명의의 등기 말소를 구한 사안에서, 갑은 뇌경색으로 입원하기 오래전부터 자신이 설립한 사회복지법인의 운영에 필요한 재산들을 자신의 복지사업을 이어갈 을 명의로 이전하기 시작하였는데, 위 부동산들은 개인 명의로 되어 있지만 법인 관련 용수공급용 토지, 주차장 등으로 사용되어 오던 것인 점, 갑은 뇌경색으로 2차례 병원에서 입원치료를 받고 자택에서 가정간호를 받았는데, 2차 입원 당시 담당의사가 작성한 진료기록 등에는 ‘의식이 명료한 상태’, ‘의식이 명료하고, 눈 깜박임을 통해 의사를 표현할 수 있는 상태’, ‘락트-인 증후군(locked-in syndrome, 의식은 있지만 목 아래 부분이 전신마비인 상태)’, ‘사지마비 상태로 언어장애가 있었으나, 눈으로 의사소통이 가능한 상태’라고 기재되어 있고, 갑의 자택을 방문하여 가정간호를 한 간호사들이 증여일 무렵 작성한 간호기록에는 ‘갑이 인사불성 상태이나 말귀는 조금 알아듣는 듯 묻는 말에 미소를 띠며 고개를 돌리고 시선을 주기도 한다’고 기재되어 있는 점 등 제반 사정을 종합하면, 갑은 을 명의의 등기 당시 자신의 의사를 외부에 표시할 수 있는 등 의사능력이 있었고, 갑이 증여계약서 작성 당시 락트-인 증후군으로 날인행위를 할 수 없는 상태여서 인영의 진정성립에 대한 사실상의 추정은 깨어지나, 갑은 을 명의의 등기 전에 을에게 부동산들을 증여한다는 의사표시를 하고, 실제 등기업무를 수행할 을에게 증여계약서 중 ‘증여인’란에 자신의 인감도장을 날인할 권한을 위임하였다고 인정할 수 있어 증여계약서가 갑의 의사에 따라 작성되었으므로, 을 명의의 등기가 유효하다고 한 사례.

Articles 186 and 554 of the Civil Act

Plaintiff 1 and two others (Attorney Kim Sung-sung, Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorney Kim Jong-il, Counsel for the defendant-appellant)

Daegu District Court Decision 2013Gahap6456 Decided November 21, 2014

August 24, 2016

1. The part of the first instance judgment against the Defendants shall be revoked.

2. The plaintiffs' claims against the defendants are all dismissed.

3. The plaintiffs and the defendants bear the costs of lawsuit.

1. Purport of claim

For the plaintiffs:

A. Defendant 1: (a) Of the real estate listed in paragraphs 1, 3, and 4 of the attached list of real estate, each of 3/4/4 shares of the real estate listed in the attached Table Nos. 1, 3, and 4 was registered with the Daegu District Court registered with the Daegu District Court on September 5, 2003; (b) the registration of transfer of ownership completed as No. 33173, Jun. 19, 2003; (c) the registration of transfer of ownership completed as of June 19, 2003; and (d) the registration procedure for cancellation of each transfer of ownership completed as of June 20, 203, among the real estate listed in paragraphs 5 and 6 of the attached Table No. 5 of the same Act;

B. Defendant 2 implements the procedure for registration of cancellation of ownership transfer registration completed on April 14, 2009 as of April 14, 2009 with respect to each of 3/4 shares in the real estate listed in the separate sheet Nos. 5 and 6 of the real estate list;

C. Defendant 3 implements the procedure to register cancellation of the registration of chonsegwon (right to lease on a deposit basis) completed on March 2, 2012 as of March 2, 2012 with respect to 3/8 shares in the real estate listed in paragraph (2) of the attached list of real estate;

D. Defendant Lidong Agricultural Cooperative will implement the procedure for registration of cancellation of the establishment of a neighboring mortgage, which was completed as of February 18, 201 in the same registry office on October 21, 201, and completed as of October 57643, which was completed as of October 21, 2011, among the real estate listed in paragraphs 3 and 4 of the attached Table, (i) the registration of establishment of a neighboring mortgage completed as of February 18, 2010, (ii) the registration of establishment of a superficies completed as of February 18, 2010.

2. Purport of appeal

The decision of the court of first instance is as follows (the part of the judgment of the court of first instance against the co-defendant Daegu Livestock Industry Cooperative and an independent party intervenor in the judgment of the court of first instance against the co-defendant in the judgment of the court of first instance is final and conclusive as it is, and the part against co-defendant 3 in the judgment

1. Basic facts

A. On November 8, 2005, the Plaintiffs and Defendant 1 were deceased Nonparty 1’s inheritors (hereinafter “the deceased”) (the Plaintiff 1 acquired U.S. citizenship and changed her husband’s sex to her husband’s adult reputation). The deceased was married with Nonparty 2, and was appointed Plaintiff 1, Plaintiff 2, and Defendant 1 as his child. On May 12, 1980, Nonparty 2 died, on December 21, 1985, and reported a marriage with Nonparty 3 (the deceased on February 20, 2005), and on January 6, 1986, Plaintiff 3 as the deceased and Nonparty 3’s children (the Nonparty 2-2).

B. The registration of ownership transfer in Defendant 1 (hereinafter “each of the instant registrations”) was completed on the real estate listed in the separate sheet (hereinafter collectively referred to as “the instant real estate”), which was owned by the deceased, based on each of the following donations (hereinafter “each of the instant donations”), as indicated in the column for “the cause of registration” in the following table, with respect to each of the instant donations (hereinafter “each of the instant donations”). (No. 1-6)

The receipt number of the Daegu District Court on September 5, 2003, No. 52251, Sep. 5, 2003, 2003, No. 20173, Jun. 16, 2003, No. 33173, Jun. 16, 2003, No. 52251, Sept. 5, 2003, No. 52251, Sept. 4, 2003, No. 52251, Sept. 5, 2003, No. 52251, Sept. 4, 2003, the real estate donated on September 5, 2003, No. 5, Jun. 20, 20152, Jun. 16, 2003, No. 2003

C. Defendant 2 purchased real estate Nos. 5, 6 from Defendant 1 on April 13, 2009, and completed the registration of ownership transfer under No. 8302 on April 14, 2009 with respect to real estate No. 5 and six (6).

D. The Daegu District Court completed the registration of establishment of a superficies with respect to the real estate No. 3 and No. 6585, Feb. 18, 2010, under the Daegu District Court’s registration No. 6585, Defendant 1, the mortgagee No. 832,000, the maximum debt amount, the maximum debt amount of the non-mortgage No. 832,000,000, and the registration of establishment of a superficies with superficies No. 6586, Oct. 21, 201; and completed the registration of creation of a superficies with the superficies No. 57643, Oct. 21, 201, with the maximum debt amount of No. 39,000,000 (Evidence No. 1-3, 4).

E. Defendant 3 completed the registration of the establishment of chonsegwon, which was based on Defendant 3, the deposit money of KRW 80,000,000, and the duration from March 1, 2012 to February 29, 2014, as the Daegu District Court registry No. 11475, March 2, 2012 regarding the whole second floor among the immovable property 2, Defendant 3 completed the registration of the establishment of chonsegwon (Evidence 1-2).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, and 5 (including branch numbers without any special indication; hereinafter the same shall apply), Eul evidence 6, Eul evidence 1, and the purport of the whole pleadings

2. The plaintiffs' assertion

As at the time of each of the instant donations, the Deceased was in the state of being incapable of performing its intention due to brain color, etc., each of the instant registrations is registration of invalidity of cause caused by a forged donation contract (No. 6-2, hereinafter “instant donation contract”). Since each of the instant registrations in Defendant 1’s name is null and void, registration of ownership transfer of the remaining Defendants’ name, registration of establishment of a neighboring lease on a deposit basis, and registration of establishment of a right to lease on a deposit basis should be cancelled as a registration of invalidation of cause.

Therefore, the Defendants are obligated to perform the procedure for cancellation of registration of ownership transfer, etc. established on three-fourths of the instant real estate among the instant real estate to the Plaintiffs who inherited one-fourths of shares among the deceased’s property.

3. Determination

A. Relevant legal principles

Where the registration of transfer of ownership is completed with respect to real estate, not only the third party, but also the former owner is presumed to have acquired ownership through legitimate grounds for registration. Thus, the title holder shall assert and prove the grounds for invalidation in the grounds for invalidation. In addition, where the third party is involved in the former registered titleholder’s act, the former registered titleholder’s registration is presumed to have been duly completed even if the third party is the former registered titleholder’s agent. Thus, the former registered titleholder’s title holder is presumed to be the former registered titleholder’s title holder’s title holder’s title holder’s title holder’s title holder’s title holder’s title holder’s right to represent the third party on the ground that the registration is null and void, that is, the former registered titleholder’s title holder’s title holder’s right to represent the former owner, or that the third party’s registration document is not duly progress (see Supreme Court Decision 2009Da37831, Sept. 24, 2009, etc.).

If the stamp image of the person in whose name the document was affixed is printed out by his seal, barring any special circumstance, the authenticity of the stamp image shall be presumed to have been created, i.e., the act of affixing the seal is based on the will of the person in whose name the document was written, and once the authenticity of the stamp image is presumed to have been created, the authenticity of the entire document shall be presumed to have been created: Provided, That such presumption is broken where it is revealed that the act of affixing the seal was carried out by a person other than the person in whose name the document was written, and thus, the person in whose name the document was written bears the responsibility to prove that the act of affixing the seal was based on a legitimate title delegated by the person in whose name the document was written

The mental capacity means mental ability or intelligence that can be reasonably determined on the basis of normal perception and ability, and the existence of a mental capacity shall be determined individually in connection with a specific juristic act. Whether a person has a mental capacity at the time of the juristic act has a mental capacity shall be determined by taking into account the nature of the contract, the motive and circumstance of the contract, the rationality of the terms of the contract, the attitude of the contract after the conclusion of the contract, etc. (see Supreme Court Decision 2001Da1013, Oct. 11, 2002, etc.).

B. Whether each of the donations of this case had the deceased’s capacity to perform his duties at the time of donation of this case

As alleged by the Plaintiffs, we examine whether “the deceased was in a state of absence of mental capacity at the time of each registration of this case.”

갑 제3, 4, 5호증, 을가 제2, 7, 15호증의 각 기재, 제1심과 당심의 ○○○○○대학교병원에 대한 각 사실조회 결과에 의하여 인정되는 사실로, ① 망인이 뇌경색으로 2001. 1. 4.부터 2001. 1. 6.까지 및 2001. 1. 20.부터 2001. 3. 16.까지 2차례에 걸쳐 ○○○○○대학교병원에서 입원치료를 받았고, 최초 입원 당시 작성된 망인에 대한 간호력에는 언어 곤란, 의사소통 곤란으로 기재되어 있는 사실, ② 망인은 2001. 3. 16.부터 자택에서 ○○○○○대학교병원의 의료진에 의한 가정간호를 받게 되었는데, 당시 담당의사인 소외 4가 작성한 가정간호의뢰서(을가 제2호증)에는 ‘뇌간경색 및 다발성 뇌경색으로 사지마비 상태이고 눈으로 의사소통은 가능하나 사지를 움직일 수 없고, 연하장애, 언어장애가 있으며, 음식 섭취 및 자연배뇨가 불가능하여 기관지와 비뇨기에 관을 삽입한 상태’로 기재되어 있는 사실, ③ ○○○○○대학병원의 간호사들은 망인의 자택을 정기적으로 방문하여 배뇨관 및 캐뉼러(음식공급을 위한 기관지 삽입관) 교체 등을 하고 망인의 활력징후 등을 조사한 결과를 기록하였는데, 이 사건 각 증여 당시의 간호기록(갑 제5호증)의 주요 내용은 다음과 같은 사실,

On January 6, 2003, 1203 No. 203 1. 204 1. 200 3. 20 1. 3 200 3 1. 20 3 1. 20 3 1. 20 3 1. 20 3 1. 20 3 1. 20 3 1, 2003 1. 4 1. 3 1. 20 3 1. 20 3 1. 1. 20 3 1. 20 3 1. 1. 20 3 1. 20 3 1. 1. 4 1. 20 3 1. 1. 20

④ The result of the first instance inquiry on the ○○○ University Hospital (Ma○○○○○○ University Hospital) shows that “The deceased’s consciousness appears to be maintained at the time of 2003, but it is difficult to communicate accurately, and it is difficult to exercise accurate judgment with normal recognition function.” The result of the fact inquiry on the case is that “the deceased’s identity is difficult to communicate, and it is difficult to exercise accurate judgment.” The fact inquiry on the case is that “locked-in Syrome, food, but the part below is a telegraphbrome, but the patient did not voluntarily move and speak, so it is possible to determine it as a congested condition, but unlike mixed water condition, it appears that there were many possibilities that the deceased might have deteriorated its function as a plant, and that there was a high possibility that the symptoms might have deteriorated.”

However, in light of the following circumstances, in light of the evidence Nos. 3 through 8, Eul's evidence Nos. 1 through 40, Eul's testimony and fact-finding on the non-party No. 6 witness of the first instance trial, the result of the fact-finding on the non-party No. 1 community service center of the first instance trial, and the result of the fact-finding on the non-party No. 1's request of the medical records evaluation on the Korean Medical Association and the whole arguments, the deceased could have externally expressed his intention at the time of each registration of the case, it is insufficient to recognize that the result of the fact-finding and the facts-finding on the non-party No. 1 to No. 8 and the first instance court and the ○○○○ University Hospital of the first instance trial alone was sufficient to recognize that "the deceased had no mental capacity at the time of each registration of the case

① The Deceased was established by the independent party intervenor of the first instance trial [the title before the amendment: the Social Welfare Foundation; hereinafter “△△△ Foundation”) in order to look at the children of war, ancient children, and abandoned children on the basis of the spirit of the △△ Foundation on December 29, 1958, and then actually operated the said foundation as a director of the △△ Foundation until the death of November 18, 2005. Defendant 1, the president of the Deceased, who was the head of the △△ Foundation, began to work with the △ Foundation from January 1, 1982, around the university graduation, and continued to work as the president of the △△ Foundation at the present △△ Foundation through the head of the △△ Foundation, and continued to implement the deceased’s welfare projects.

② The Deceased began to move his property necessary for the operation of the △△ Foundation under Defendant 1’s name for a long time since being hospitalized in the brain border as above. On December 31, 1992, the Deceased completed the registration of ownership transfer under Defendant 1’s name for the reason of inheritance by agreement on May 12, 1980 as to the property ( Address 1 omitted) between 392 and 2 parcels in the name of Nonparty 2, the former wife, on December 31, 1992. The Deceased completed the registration of ownership transfer under Defendant 1’s name (at the time, Nonparty 2 and the Plaintiffs drafted the agreement on division of property inheritance (Evidence 15-2, No. 15-2) on December 26, 192, which had been used under the name of △△ Foundation’s stock and farm site on March 11, 1993; Defendant 1 completed the registration of ownership transfer under Defendant 1’s own name as to the instant property donation under the name of Nonparty 2, the name of 3, 1, 2519.

③ 망인이 2001. 1. 20. ○○○○○대학교병원에 2차 입원하였을 당시 담당의사 소외 4가 작성한 진료기록(을 제15호증의 1)에는 ‘망인의 의식(consciousness)이 명료(alert)한 상태’라고 기재되어 있고, 소외 4가 작성한 2001. 2. 14.자 경과기록(을 제15호증의 2)에는 ‘망인은 의식(mentality)이 명료(alert)하고, 눈 깜박임을 통해 의사를 표현할 수 있는(able to express his will by blinking his eye) 상태’라고 기재되어 있으며, 2001. 2. 28.자 경과기록에는 ‘망인은 락트-인 증후군(locked-in syndrome) 상태’라고 기재되어 있으며, 소외 4가 작성한 2001. 3. 16.자 퇴원보고서(을 제16호증) 및 가정간호의뢰서(을가 제2호증)에는 ‘망인이 사지마비 상태로 언어장애가 있었으나, 눈으로 의사소통이 가능한 상태’라고 기재되어 있다.

④ On April 22, 2003, the nursing record prepared by the nurse of ○○○ University Hospital, who visited the deceased’s home home home, around the donation date of this case (No. 7-2 of the evidence No. 1) stated that “the deceased’s home-based care or horse-based care seems to have known that the deceased’s home-based care or horse-based care will be taken, and the deceased’s home-based care will be taken.” Around 2003 each written confirmation document (No. 8 and 9) prepared by Nonparty 6 or Nonparty 7, who visited the deceased, stated that “it was possible for the deceased to communicate, such as understanding and responding to the words of the visitor,” at the time of the donation.

⑤ 이 사건 각 증여일 약 1년 후인 2004. 7. 3. 망인의 상태가 악화되어 병원 후송을 위하여 자택에 출동한 대구서부소방서 소속 구급대원들이 작성한 구급활동일지(을 제18호증)에는 ‘망인의 의식상태는 A 의식명료, V 언어지시에 반응, P 통증자극에 반응, U 무반응의 4단계 중 V 단계이다’라고 기재되어 있고, 당시 작성된 ○○○○○대학교병원의 간호기록지(갑 제5호증의 2)에도 ‘망인이 사지를 움직일 수는 없으나, 묻는 말에 눈을 깜박이며 의사표시를 하였다’고 기재되어 있다.

⑥ 당심의 대한의사협회에 대한 진료기록감정촉탁 결과는, ‘망인에 대한 진료기록과 2004. 7. 3.자 구급활동일지 등의 내용에 비추어, 이 사건 각 증여 당시까지 망인은 락트-인 증후군 상태가 지속되었던 것으로 보이고, 당시 눈 깜박임이나 고개의 움직임 등으로 희노애락의 감정이나 재산증여에 관한 사고와 판단을 표시할 수 있었다’는 취지로 기재되어 있다.

④ On June 12, 2003 and August 26, 2003, a day before each donation date of this case, 15 copies of the deceased’s certificate of personal seal impression were issued at Sungdong community service center. The certificate of personal seal impression issuance was issued directly by the deceased, and each registration of this case was completed with the above certificate of personal seal impression.

8) The Defendant 1 husband and wife gathered and died in the house of the second real estate until the deceased died, and the Plaintiffs resided in the U.S., etc. after marriage.

9) On February 17, 2003, Plaintiff 3 also expressed an obvious opinion to Defendant 1, 2003, that “The deceased donated real estate Nos. 2, 5, and 6 to Defendant 1, and that “The third and fourth real estate shall be donated to △ Foundation,” and that Plaintiff 3 shall also have no objection thereto.” (A evidence 3) and a certificate of personal seal issued directly by himself.

(10) As seen above, the Plaintiffs prepared the agreement on inheritance and division of the deceased’s property as of December 26, 1992, or the confirmation document (Plaintiff 3) as of February 17, 2003, and filed the instant lawsuit disputing the validity of each of the instant donations until June 27, 2013, which was about 8 to 10 years after the deceased’s death, on each of the registration dates of this case around 2003 or on November 18, 2005.

C. Whether the gift contract of this case was forged

Comprehensively taking account of the overall purport of the arguments in the statements Nos. 4, 5, and 6, the “Gift” of the donation contract of this case drawn up on September 4, 2003 includes the name, resident registration number, and address of the deceased and the seal imprint of the deceased. However, as seen earlier, the deceased was in a state in which it is impossible for him to affix his seal to the mar-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Mad-Ma

However, comprehensively taking account of the circumstances as seen earlier and the cited evidence, the Deceased expressed his intent to donate the instant real estate to Defendant 1 prior to each registration of the instant case, and it is recognized that Defendant 1, etc., who actually performed the registration, delegated his authority to affix his seal imprint to the “Gift” column under the instant donation contract.

According to the above facts, the donation contract of this case was prepared according to the deceased's will, so the plaintiffs' assertion of forgery is without merit.

D. Sub-determination

Therefore, each of the registrations of this case is valid registration made by the deceased’s doctor and the genuinely formed gift contract of this case. Thus, the assertion of the prior plaintiffs is without merit on different premise.

4. Conclusion

Therefore, the plaintiffs' claims in this case are dismissed without merit. Since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, the part against the defendants in the judgment of first instance is revoked, and the part against the defendants in the judgment of first instance is dismissed, and all of the claims against the defendants are dismissed. It is so decided as per Disposition.

[Attachment] List of Real Estate: omitted

Judges Jin Sung-chul (Presiding Judge) Kim Tae-tae