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(영문) 대법원 1987. 10. 13. 선고 87다카836 판결
[소유권확인등][공1987.12.1.(813),1709]
Main Issues

The case reversing the judgment of the court below on the ground that there was an error in the rules of evidence selection or incomplete hearing.

Summary of Judgment

The case reversing the judgment of the court below on the ground that there was an error in the rules of evidence selection or incomplete hearing.

[Reference Provisions]

Article 187 of the Civil Procedure Act

Plaintiff-Appellee

Plaintiff 1 and 4 others, Counsel for the defendant-appellant

Defendant-Appellant

Defendant Osung et al., Counsel for the defendant-appellant

Text

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.

Reasons

The grounds of appeal are examined.

With respect to the first instance trial:

According to the decision of the court below, the 192 square meters prior to the Gyeonggi-gun (No. 1 omitted) of Gyeonggi-gun (No. 2 omitted), which is the land in the dispute of this case, are divided from the 2,519 square meters (the 762 square meters prior to the 1,484 square meters, but this is an error). The land prior to the division was originally owned by Nonparty 1, but the above 1 was deceased on 1940 and the 2, the 1976 deceased on 1976, and the 3rd degree of the 3rd degree of the plaintiffs, the 192 square meters prior to the division, and the 4th degree of the above 192 square meters, and the 4th degree of the above 1979 square meters were sold to Nonparty 4, and the court below rejected the plaintiffs' assertion that there was no evidence to acknowledge that there was no other evidence to acknowledge that the 3rd party was the owner of this case's land.

However, solely on the ground that Nonparty 3 was not an administrator of the deceased Nonparty 2 or the plaintiffs, it cannot be concluded that the above Nonparty 3 did not have any fundamental authority to represent the plaintiffs. According to the legal brief (i.e., September 3, 1985) of the defendant's legal representative stated on the date of the seventh argument of the court of first instance, the defendant does not assert that the act of selling the land in this case constitutes an expression agent on the sole ground that Nonparty 3 was an administrator of the plaintiffs' land, and it does not constitute an act of expressing agency, and even if it disposes of a lot of land other than the land in this case on behalf of the plaintiffs, the non-party 4, who is aware of such fact, believed that he was the representative of the plaintiffs and purchased the land in this case without doubt, and also specified the lot number of the land

In addition, according to the testimony of the non-party 4 of the witness of the first instance trial, the non-party 3 testified that the land owned by the plaintiffs in the Bupyeong area is sold on behalf of the plaintiffs except for the land in this case (Records 281) and according to the testimony of the non-party 3, the non-party 3 bears the testimony that the real estate sold by that person upon delegation by the plaintiffs is about 7.

(Records 296)

On the other hand, the court below should have deliberated on whether or not the above non-party 3 was the administrator of the plaintiffs and whether or not there was the fact that the plaintiff sold other land inherited by the plaintiff, and should have judged whether or not there was a fundamental right of representation. Accordingly, the court below rejected the non-party 3's assertion that the non-party 3 was the administrator of the deceased non-party 2 or the plaintiffs, and decided that there was no evidence to prove that there was no fundamental right of representation for the plaintiffs against the above non-party 3, the court below should not be exempted from criticism that there was an error of law by failing to exhaust all necessary deliberations as to the defendant's assertion of representation, or by failing to satisfy the reasons therefor. The ground for appeal

With respect to the second ground:

The court below rejected the defendant's assertion, in addition to the reasons that the plaintiffs raised an objection against the non-party 3's land disposal act of this case, the non-party 4, the purchaser of the non-party 3, agreed to pay 2.32 billion won additionally to the plaintiffs at the end of the compromise with the plaintiffs as a result of the non-party 5's settlement of the dispute, and the plaintiffs confirmed the above non-party 3's land disposal act of this case, and there is no evidence other than the evidence that the plaintiffs and the non-party 4 did not believe that there was the above agreement between the plaintiffs and the non-party 4. However, although the plaintiffs received 2 million won from the non-party 4, it is not the land of this case that the above non-party 3 illegally sold to the above non-party 4 [the non-party 3's address 192 square meters].

However, as recognized by the court below, the land purchased by Nonparty 4 from the above non-party 3 is the land of this case and the land above ( Address 3 omitted) two parcels (the land of this case which was first purchased from the above non-party 4 was sold to the defendant and purchased after the above ( Address 3 omitted). As determined by the court below, the sale of the land owned by the non-party 3 is a dispute not between the plaintiff and the non-party 4, and it is hard to readily accept that the land of this case was the object of the agreement, and that only the above ( Address 3 omitted) land is the object of the agreement, unless there are special circumstances.

In the second testimony of the court of first instance, all the non-party 5 who is the party to the above agreement and the non-party 3 and the non-party 4 who has mediated the agreement as well as the non-party 4, made a testimony to the effect that the non-party 4, at the request of the plaintiffs, obtained an additional amount of 2,320,000 won for the total land totaling 116 square meters, and paid 2,000,000 won to the plaintiffs. However, the court below decided that the non-party 3 received the testimony from the non-party 6 of the court of first instance that the non-party 3 was paid 2,00,000 won to the non-party 4 as the object of the agreement, and rejected the above testimony from the non-party 6 of the court of first instance, but the above non-party 6 was not the party or related person of the above agreement, and delivered it to the plaintiff 4 at the request of the plaintiffs, and did not know the circumstances or details of the agreement.

Therefore, the above judgment of the court below on this point is ultimately a violation of the rules of evidence selection, which failed to exhaust all necessary deliberations or erred in the rules of evidence selection.

It is also justified to point out that point.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Man-hee (Presiding Justice)

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