The mortgagee of the right to collateral security against the debtor shall express his/her intention to accept the registration of cancellation of ownership transfer.

It is necessary to understand the meaning of day-to day-day and legal meaning and effects in order to recognize the capacity of opinion in the request for cancellation of registration of ownership transfer and the request for declaration of consent to the mortgagee.

Article 47 of the National Tax Collection Act

2014 Gohap 562190 Requests for cancellation of ownership transfer registration

Ansan 00

Republic of Korea Overseas

on October 26, 2015

on September 016, 2019

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Plaintiff: (a) Defendant AA performed the procedure for registration of cancellation of ownership transfer registration completed on October 0, 2013 by the Seoul 00 District Court 00 00 registry office 0000 of the receipt on October 0, 2013 with respect to one half of the real estate listed in the separate sheet; (b) Defendant Republic of Korea (SO: 00) and the Plaintiff Company 000 expressed their intention of each acceptance on the registration of cancellation of ownership transfer registration.

1. Basic facts

1. Basic facts

A. The Plaintiff had 0 South Korea (CCC, DD, EE, and Defendant AA) between the network BB and the network BB, and shared the land and buildings listed in the separate sheet with DD and Defendant AA (Plaintiff 1/2, DD1/4, Defendant AA1/4 shares).

B. Of the land and buildings listed in the separate sheet, the registration of ownership transfer was completed in Defendant AA on October 0, 200 on each of the 1/2 shares owned by the Plaintiff (hereinafter referred to as “each of the above shares”) as the grounds for registration (Seoul High Court Decision 000, No. 0000 received on October 00, 2000, and "the gift of October 00, 2000, which is the above grounds for registration," hereinafter referred to as “the gift contract of this case”).

C. After that, several lawsuits and rulings were filed regarding the instant gift agreement. Defendant AA also set up a right to collateral security for the instant shares, and the following are arranged in order of time.

⦁ 2000. 00. 00. 원고가 "이 사건 증여계약이 본인의 진정한 의사였음을 확인한다."는 취지의 '사실확인서'를 작성하여 인증받음(법무법인 00 2013년 제000호).

⦁ 2013. 00. 00. 원고가 이 사건 지분에 대해 처분금지가처분을 신청하여 2013. 00. 00. 가처분 등기가 마쳐짐(서울00지방법원 2013카합000).

⦁ 2013. 00. 00. 원고가 위 가처분을 해제함. 이에 따라 2013. 00. 00. 가처분등기가 말소됨.

⦁ 2013. 00. 00. CCC(원고의 장남)이 원고를 사건본인으로 하여 성년후견개시심판을 청구함(서울00법원 2013느단000).

⦁ 2000. 00. 00. 원고가 피고 AAA을 상대로 이 사건 증여계약이 무효임을 이유로 피고 AAA 앞으로 이루어진 지분 이전등기의 말소를 구하는 소송을 제기함(서울00지방법원 2013가합000).

⦁ 2014. 00. 00. 피고 AAA이 별지 목록 기재 토지에 관한 기존의 자신 지분 및 이 사건지분(합쳐서 3/4지분)에 관하여'채권최고액 000원, 채무자 피고 AAA, 근저당권자 피고 대한민국(처분청 00세무서)'으로 된 근저당권 설정등기를 마침.

⦁ 2014. 00. 00. 원고가 제기한 위 2000. 00. 00.자 지분 이전등기 말소청구 소송에 대해 원고 소송대리인이 제출한 소송위임장만으로는 원고가 원고 소송대리인에게 소송대리권을 위임하였다고 인정하기에 부족하다."는 이유로 소 각하 판결이 선고됨. 같은 날(2014. 00. 00.) 피고 AAA은 별지 목록 기재 토지 및 건물에 관한 기존의 자신 지분 및 이 사건 지분(합쳐서 3/4 지분)에 관하여 '채권최고액 00억 원, 채무자 피고 AAA, 근저당권자 피고 주식회사 000'로 된 공동근저당권 설정등기를 추가로 마침.

⦁ 2014. 00. 00. 위 성년후견개시 심판 절차에서 열린 심문기일에 원고가 사건본인으로 출석하여 "몸이 좋지 않다. 한의원을 이번 달까지 운영했다. 청구인(CCC)이 사건본인을 대신해서 재산관리 등을 도와주길 원한다."는 취지로 진술함.

⦁ 2014. 00. 00. 피고 AAA이 원고를 상대로 부당이득 반환 소송을 제기하여 현재 계속 중(서울중앙지방법원 2014가단000).

⦁ 2000. 00. 00. 위 성년후견개시 심판 절차에서 2000. 00. 00. "원고에 대해 성년후견을 개시하고 CCC을 성년후견인으로 선임한다."는 취지의 심판이 내려짐. 피고 AAA이 항고하였으나(서울가정법원 2014브000) 항고가 기각되어 위 심판은 그 무렵 확정됨.

⦁ 2014. 00. 00. 이 사건 소송이 제기됨.

Facts without any dispute, Gap's evidence 1, 8 through 10, 12, Eul's evidence 1, 3, 6, and 7, and the purport of the whole pleadings.

2. The plaintiff's assertion

At the time of the donation contract of this case, the Plaintiff was incapable of doing a legal act due to the mixed dementia, etc., but Defendant AA written out the appearance of the donation contract of this case and completed the registration of ownership transfer in its own future by using the Plaintiff in this state. Ultimately, the donation contract of this case is null and void since the Plaintiff was made in the state of his own business capacity. Accordingly, Defendant AA sought cancellation of ownership transfer registration based on the donation contract of this case against Defendant AA, the Republic of Korea, Defendant Korea, and 00 corporations, based on the above ownership transfer registration, sought consent for the registration of cancellation registration against each of the above mortgagee.

3. Determination

A. In light of the following circumstances, the Plaintiff’s attorney asserts that at the time of the instant donation contract, the Plaintiff had a state of his/her office capacity.

① On October 2010, the Plaintiff was diagnosed with the latter cerebral Mac-K (Mini State Exa - Korea, simple mental condition test) as a result of the inspection conducted at the time, 20 points, and 1 and 7-Minute Scree test results were predicted 0.9 points.

② On October 20, 2011, the Plaintiff was diagnosed by Vascul de Macular, and around October 201, the Plaintiff was prescribed by Gliatin, which is a medicine prescribed by the gliat, such as the degradation of memory, the disturbance, the desire for intention, the fall of self-harm, the reduction of concentration, etc.

③ On October 00, 2013, the Plaintiff was judged to have been aware of GDS (Glbal Deale, overall compost scale) 4, and MPE-K was 16 points. From around that time, the Plaintiff began to take advantage of Aricle (Aricep), which is a medicine for dementia treatment. (4) At the time of the instant donation contract, the Plaintiff was diagnosed as “mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mix mar around October 00, 2013.”

⑤ The Plaintiff was diagnosed as “mix dementia with the total intelligent index 57, 6 months of age in society, GDS6 (NES-K 13 points in recognition of symptoms), and MP-K 13 points in an inspection conducted around October 2014.”

6) The Plaintiff had a strong attachment to the land and buildings listed in the separate sheet before the outbreak, and was resolving the living expenses and hospital expenses from the rental income generated from this real estate. Under such circumstances, the gift of this case’s equity interest would not be ideal.

7) From around October 00, 2013, after the donation contract of this case, the Plaintiff: (a) around October 20, 2013, which had a potential mental disorder; (b) there was no doubt that the Plaintiff donated the instant shares to Defendant AA; (c) Defendant AA made it to the effect that “IA is bad and bad; and (d) must recover the real estate again; and (e) Defendant AA has already been supported by a lot of property from the Plaintiff.” In addition, since Defendant AA had already been supported by a lot of property from the Plaintiff, there was no reason for the Plaintiff to specially distribute the instant shares to Defendant AA.

8. Videos, certificates, and records produced by Defendant AA as evidence are a normal gift contract, they need not be prepared if they were not a normal gift contract, and they are expected to complete the contents of the contract later.

In detail, it shows that Defendant AA has been closely planned in advance by acquiring the instant shares in order to deduct them from the instant shares.

9) Defendant AA revealed the property desire that had been aware of by setting up a collateral mortgage on the recipient of the instant shares, filing a claim against the tenants of the building as if they were the main owner, filing a lawsuit claiming the return of unjust enrichment against the Plaintiff.

B. Expression of intention means mental ability or intelligence that can be reasonably determined on the basis of normal perception and towing ability, and existence or absence of capacity of intention must be determined individually in relation to a specific juristic act. In particular, in cases where a juristic act gives a special legal meaning or effect that makes it difficult to understand only the ordinary meaning in a certain juristic act, it is required to understand not only the ordinary meaning of the act, but also the legal meaning or effect in order to be recognized (see, e.g., Supreme Court Decision 2008Da58367, Jan. 15, 2009).

C. However, the screen image (No. 12) taken by Defendant AA around the time of the instant gift contract contains a conversation between the Plaintiff and the attorney-at-law in charge of the instant gift contract and the ownership transfer registration of the instant share. However, in the above screen, the Plaintiff clearly expresses that the Plaintiff had the intent of donation over several times to question the attorney-at-law who asked for the gift will (the Plaintiff is not simply a passive response to the question of the attorney-at-law, but also includes his opinion and additional circumstances). In light of the language and expression used by the Plaintiff, and the overall content and flow of the conversation, it can be confirmed that the Plaintiff had fully understood the legal meaning and effect of the act of donation at the time when considering the overall content and flow of the conversation.

D. Therefore, even if the Plaintiff’s mixed dementia symptoms have deepened in many respects at the time of the instant donation contract, as alleged by the Plaintiff’s attorney, and accordingly, even if the Plaintiff’s thinking ability, language ability, and judgment ability were to be more weak than normal factors at the time of the instant donation contract, it is difficult to deem that the Plaintiff had the ability to make a decision at the time of the instant donation contract, beyond this point, was insufficient.

E. Therefore, the Plaintiff’s claim for the cancellation of ownership transfer registration against Defendant AA and the claim for the declaration of consent to the Defendant Republic of Korea, the mortgagee, and the corporation 000 on the premise that the Plaintiff had the capacity to perform his/her duties at the time of the instant donation agreement cannot be accepted.

4. Conclusion

Therefore, all of the plaintiff's claims against the defendants are dismissed as it is without merit. It is so decided as per Disposition.