Plaintiff 1 and four others (Law Firm, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant) who are the party to the lawsuit of the deceased non-party 1, the party to the lawsuit of the deceased non-party 2 and the deceased non-party 2

Defendant 1 and two others (Attorneys Choi Young-young et al., Counsel for the defendant-appellant)

January 25, 2007

Changwon District Court Decision 2002Gahap4115 Decided September 8, 2005

1. All of the plaintiffs' primary claims on real estate in attached Tables 4, 5, and 6 against defendant 1 and 2 that are changed in exchange in the trial of the political party are dismissed.

2. The plaintiffs' appeal is dismissed.

3. The costs of the lawsuit after the appeal are assessed against the plaintiffs.

4. The plaintiffs' motion to resume proceedings on November 14, 2006 is dismissed.

The judgment of the first instance shall be revoked.

1.In the first place:

A. Defendant 1

(1) In accordance with the Schedule 1 of Attached List 2,

(A) implement the procedure for the transfer registration of ownership based on the return of unjust enrichment with respect to the real estate listed in [Attachment 1] 1, 2, and 3; and

(B) The procedure for the cancellation registration of the registration of the preservation of ownership made on June 4, 1974 by the Changwon District Court Msan Registry on the real estate listed in [Attachment 1] List 4 and 5, and the procedure for the cancellation registration of the registration of the preservation of ownership made on June 4, 1974 on the real estate listed in [Attachment 1] List 6, shall be implemented, respectively, on December 31, 1971 by the same registry office;

(2) Payment of 20% interest per annum from the next day of the delivery of the copy of the complaint of this case to the day of complete payment of each of the amounts listed in Appendix 2 List 2 List; and

B. Defendant 2: The plaintiffs

(1) according to the share in [Attachment 3] (1),

(A) On January 22, 2002, the Changwon District Court Masan Registry on the real estate listed in [Attachment 1] List 6, shall implement the procedure for registration cancellation of ownership transfer registration made on January 22, 2002;

(B) implement the procedure for the transfer registration of ownership based on the return of unjust enrichment with respect to the real estate listed in [Attachment 1] 8 to 15; and

(2) Payment of 20% interest per annum from the next day of the delivery of the copy of the complaint of this case to the day of complete payment of each of the amounts listed in [Attachment 3 List (2].

C. Defendant 2 and 3 implement the procedure for the transfer registration of ownership due to unjust enrichment return as to the real estate listed in the Attached Table 1 List 7 according to the share in Attached Table 3 List 1.

D. Defendant 1 and 2 shall pay to each of the plaintiffs 1 and 2 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. For the preliminary purpose:

A. Defendant 1

(1) In accordance with the Schedule 1 of Attached List 2,

(A) April 17, 1983 with respect to the real property listed in Schedule 1 and 2;

(B) February 4, 1994 with respect to the real property listed in Schedule 3 of Schedule 1;

(C) June 4, 1994 with respect to the real estate listed in [Attachment 4 and 5] List 1

(D) On December 31, 1991, as to the real estate listed in Appendix 6 List No. 1

each procedure for the registration of ownership transfer due to completion of each acquisition by prescription;

(2) Payment of 20% interest per annum from the next day of the delivery of the copy of the complaint of this case to the day of complete payment of each of the amounts listed in Appendix 2 List 2 List; and

B. Defendant 2 performed the procedure for registration of cancellation of ownership transfer registration, which was made on January 22, 2002 under the receipt of No. 5516 on January 22, 2002, with respect to the real estate listed in Attached Table 1 List No. 6, according to the shares listed in Attached Table 3 List

C. Defendant 2 and 3 implement the procedure on November 29, 1998 for the transfer registration of ownership based on the completion of prescriptive acquisition on November 29, 1998 with respect to real estate listed in Attached Table 7 according to the shares listed in Attached Table 3 List 1.

D. Defendant 1 and 2 paid to each of the plaintiffs 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of complete payment (the plaintiff 1 and 2 stated in the separate sheet No. 4, 5, and 6 of the separate sheet No. 1 against the defendant 1 among the primary claims, the claim for cancellation of registration of ownership based on unjust enrichment as the ground of invalidation is made in the claim for cancellation of registration of ownership transfer based on unjust enrichment as stated in the separate sheet No. 6 of the separate sheet No. 1 against the defendant 2, on behalf of the defendant 1. The claim for cancellation of ownership transfer registration based on unjust enrichment as the ground of invalidity of the ground of appeal No. 6 of the separate sheet No. 1 against the defendant 2 was changed to the claim for cancellation of registration of ownership transfer as the ground of invalidity of the ground of appeal No. 1 on Nov. 14, 206. 206. Each of the above claims by Nonparty 1 and the joint heir No. 2 were found to be subject to claim No. 1 and 271/6.1).

1. Basic facts

The following facts are not disputed between the parties, or found in each entry of Gap evidence 1 to Gap evidence 41, Eul evidence 1 to Eul (including each number), and the whole purport of the pleadings.

A. Status of the parties

(1) Nonparty 1, the Plaintiff prior to the taking-off of the lawsuit, had children, including Plaintiff 1, Plaintiff 2, Defendant 1, Defendant 2, Defendant 3, Defendant 3, Plaintiff 4, and Plaintiff 4, and Plaintiff 5, who was the wife, with Nonparty 2, the Plaintiff prior to the taking-off of the lawsuit.

(2) Around April 15, 1989, Non-party 1 was strokeed and was treated again on April 2001, and was hospitalized from November 4, 2001 to March 2002, Non-party 1 was hospitalized in the ○○ Hospital for Masan, such as brain stroke aftermathy, urine, urine, and stroke, and was killed on August 24, 2003 while the instant lawsuit was pending.

(3) Upon the death of Nonparty 1, the wife Nonparty 2 and the Plaintiff’s children, and the Defendants were co-inheritors of the deceased Nonparty 1’s property. Nonparty 2 also died on December 9, 2006 during the instant lawsuit and became a child, and the Defendants became co-inheritors of the deceased Nonparty 2’s property.

B. Acquisition of the real estate of this case

The grounds for the acquisition of each of the real estate listed in the separate sheet No. 1 (hereinafter referred to as “real estate No. 1” or “real estate No. 15” or “real estate” are as follows ( Of them, the registration of preservation of ownership or registration of transfer of ownership in the name of the Defendants as to the remaining real estate except for the registration of transfer of Defendant No. 6 real estate under Defendant No. 2).

(a) 1 to 5 real estate;

The non-party 1 purchased the real estate No. 1 and No. 2 on April 12, 1963 and completed the registration of ownership transfer under the name of Defendant 1 on the 17th of the same month, and had been engaged in the sanctions business in the name of △△ e.g., “△ e.,” at all places. From around 1968, the registration of ownership transfer was completed in the name of Defendant 1 on June 4, 1974 as the receipt of No. 15600 on the 1st of the real estate and used it as a sanction factory. Meanwhile, the non-party 1 purchased the real estate under the name of Defendant 1 on March 23, 1973 and completed the registration of ownership transfer under the name of the same defendant on February 4, 1974.

(2) Six real estate;

The non-party 1 purchased approximately 168 square meters and completed the registration of ownership transfer under his name on August 8, 1970 on February 24, 2002, the wife non-party 2, who was the wife of the above real estate, completed the registration of ownership transfer on January 10 of the same year, and thereafter, the registration of ownership transfer was completed on the above ground under the name of defendant 1 as of December 31, 1971, as of December 22, 2002, under the name of the Changwon District Court, Yongsan District Court, as of December 31, 1971, the registration of ownership transfer was completed on January 22, 2002 under the name of defendant 2 as of January 516, 202.

(3) Seven real estate;

On November 29, 1978, the non-party 1 purchased approximately 1,01.6 square meters in Msan-dong 2 (number 2 omitted) and completed the registration of ownership transfer in the name of the plaintiff 3. On August 6, 1982, the non-party 1 purchased the above real estate under the name of the plaintiff 2 (number 2 omitted), approximately 404.4 square meters in August 6, 1982, and the two (number 3 omitted), approximately 203.8 square meters in (number 3 omitted in the case of the above real estate) and the two (number 4 omitted) and the two (number 5.7 square meters in the name of the defendant 2 and the Dong 35.7 square meters in the name of the defendant 2 and the Dong 3 on January 26, 1982.

(4) 8 to 15 real estate

On March 26, 1987, Nonparty 1 purchased real estate Nos. 8 through 15 and completed the registration of ownership transfer under Defendant 2 on the 27th of the same month.

(c) Establishment of a collateral security;

On the other hand, with respect to the real estate of Articles 1 through 5, Defendant 1 completed the registration of creation of a collateral on January 31, 2002, the maximum debt amount of 1.2 billion won; the debtor 1; the debtor 2.4 billion won; the debtor 2; the debtor 2; the debtor 2; the debtor 3. the registration of establishment of a collateral security on June 8, 2002, with respect to the real estate of Articles 1 through 5; the registration of establishment of a collateral security on May 12, 1998 to the National Bank of Korea; the registration of establishment of a collateral security on May 18 through 15, 1998 to the debtor; and the registration of establishment of a collateral security on June 30, 199 to the non-party 30 billion won (the maximum debt amount of the collateral security; the debtor; the non-party 2; and the non-party 300,300,000 won to the non-party 1.3 billion won; and the debtor 19.3 billion won.

2. Determination as to the legitimacy of the plaintiffs' request for continuation of proceedings on November 14, 2006

A. Progress of the lawsuit

(1) The non-party 1 died on August 24, 202 while the lawsuit of this case brought by the non-party 2 and the plaintiff 1, 2, 3, 4, 5, 1, and 2, etc., who were his wife, on his behalf, were eight persons, including the plaintiff 1, 2, 3, 4, 5, 1, and 2, who were his wife.

(2) The Lee Young-soo, who was delegated by Nonparty 2 for a lawsuit again, deemed that Nonparty 2 received the whole property of the deceased Nonparty 1 as a universal legacy, and applied for a takeover of the lawsuit by taking only Nonparty 2 among co-inheritors as a lawsuit acceptanceor. On September 8, 2005, the first instance court sentenced only Nonparty 2 as the deceased Nonparty 1’s lawsuit acceptanceor on September 8, 2005, which was served with the above judgment, filed an appeal against the above judgment on October 5, 2005.

(3) The Plaintiffs, part of the deceased Nonparty 1’s co-inheritors, filed a motion to resume the lawsuit on November 14, 2006 pending in the appellate court of this case.

B. Determination on the legitimacy of a request for a takeover of a lawsuit

(1) The judgment of the case is effective against all inheritors, in principle, in the case where the party involved in the lawsuit at the court of first instance died, but the proceedings have not been interrupted due to the cause of the party's death, and the legal representative has not taken place for all inheritors. In this case, even if the new party's wrong representation was made, the judgment of the case is effective against all inheritors. The judgment of the case is not effective against the party whose wrong representation was made with the words representing the deceased's heir, such as the deceased's heir, the legal successor, and the legal successor (Supreme Court Order 91Ma342 delivered on November 5, 1992).

(2) Meanwhile, according to the evidence No. 138, Nonparty 2 may recognize the fact that the deceased Nonparty 1 received individual property, not the deceased Nonparty 1’s inherited property ratio, and even if there are inherited property, it constitutes a specific legacy. Unlike the universal legacy, a specific legacy exists only in the effect of a claim, and thus, the property right to the legacy belongs to the inheritor as inherited property, and the donee acquires a claim to perform the legacy against 10 (Supreme Court Decision 2000Da73445 Decided May 27, 2003), since the latter’s property belongs to the inheritor, and the donee acquires a claim to perform the legacy against 10s (Supreme Court Decision 200Da73445 Decided 27, 2003), the deceased Nonparty 1’s property was jointly inherited to the plaintiff, including Nonparty 2, and therefore, even if the first instance court made a judgment by indicating only Nonparty 2 as a litigation agent,

(3) Also, in ordinary cases, litigation proceedings shall be interrupted when the original copy of the judgment of the first instance is served on the attorney in accordance with the principle of representation at the court level. However, in case where the attorney has been granted the special authorization of the appeal, the litigation proceedings shall not be interrupted during the period of the appeal (Supreme Court Order 91Ma342 Decided the above Supreme Court Order), and according to the evidence No. 932, the attorney-at-law, who was the attorney of the first instance court, who was the attorney of the second instance, is recognized as having been granted the special authorization of the appeal (the special authorization is granted with the same text as that of the delegation at the court of first instance). Thus, among the deceased Nonparty 1's heir in the judgment of the first instance, the judgment has become final and conclusive since the period of the appeal has expired without filing any appeal by him or his attorney.

(4) Therefore, the plaintiffs' request for the takeover of the lawsuit filed by November 14, 2006 as the deceased non-party 1's lawsuit acceptance is unlawful in the trial.

3. Determination on the defense prior to the merits

The Defendants asserted that, at the time of the filing of the instant lawsuit, Nonparty 1 was in a state of mental disorder due to the stroke, urine, urine, urine, stroke, and strokeitis, etc., who are old and sick, and thus, the instant lawsuit ought to be dismissed because it was filed by the person without legal capacity or filed by Nonparty 2 against Nonparty 1’s will.

In light of the overall purport of the arguments in the statement No. 2, No. 35-2, No. 46, and No. 4-26 of the evidence No. 136, around August 14, 2002, at the time of the institution of the lawsuit in this case, Nonparty 1 was in a mental and dementia state due to stroke, stroke, stroke, and stroke, and thus, Non-Party 1 was in a mental and dementia state (this case is the case where Non-Party 2 deemed to have filed an application for incompetency against Non-Party 1 with the Changwon District Court around July 2002). Thus, the lawsuit in this case and subsequent litigation of this case by Lee Jong-young, who is the legal representative of the first instance court, did not have the right of defect in the above evidence No. 43-1 or 8, Eul evidence No. 4-26, and Eul evidence No. 14, respectively, and Non-Party 1 was delegated to the defendant 2's Counsel 1 and the defendant 10.

4. Judgment on the merits

A. Judgment on the main claim

(1) The argument

As the primary cause of the instant claim, the Plaintiffs: (a) all of the instant real estate was acquired or newly constructed by Nonparty 1 and entrusted to the Defendants, who were satisfy with children; (b) Defendant 1, upon the lapse of the grace period for real name conversion, has been enforced; (c) Defendant 2, as to the instant real estate, is obligated to implement the procedure for ownership transfer registration on the ground of unjust enrichment, since he acquired full ownership of the instant real estate, and each of the instant real estate constitutes unjust enrichment; and (d) Defendant 1 is obligated to perform the procedure for ownership transfer registration on the instant real estate under the name of Nonparty 1, who was aware of the invalidity of the above title trust agreement; and (b) Defendant 1 and 2, as to the instant real estate, are obliged to preserve the real estate under the name of the deceased Nonparty 1, who was aware of the lapse of the registration period for ownership transfer; and (b) Defendant 1 and 2, as to the instant real estate under the name of Defendant 1,000,000 won,000 won,00 won.

(2) Determination

(A) According to the evidence of the court below, the non-party 1 purchased or newly built the real estate under the name of the non-party 1 with his own money, and the non-party 1 had been operating the sanctions even after the registration of ownership transfer or ownership transfer was made under the name of the defendant 1, and the funds necessary for the operation of the sanctions were continuously used or profited from the real estate by the time of the death of the non-party 1 with the real estate in the name of the non-party 1, and the non-party 1 had no other reasons to believe that the real estate was transferred to the non-party 1 under the name of the non-party 1 with his own real estate under the name of the non-party 6's name, and that the non-party 1 had no other real estate under the non-party 1's name, including the defendant 1 and the non-party 2 had no other real estate acquired or sold the real estate under the non-party 1's own name for 30 to 40 years.

(B) Therefore, without having to examine the remainder, the primary claim against the Defendants is without merit.

B. Determination on the conjunctive claim

(1) The argument

(A) As the conjunctive cause of the instant claim, the Plaintiffs, as Nonparty 1, had the intent to own at least 20 years of possession of the instant real estate after inheritance or subdivision thereof in their own name. As such, as Nonparty 1’s intent until death, continuously occupied the instant real estate for at least 20 years, and as such, the acquisition by prescription was completed, Defendant 1 had the obligation to register the ownership transfer of the instant real estate with the intention to own it, on April 17, 1983, 4, and 5 as to the third real estate as to the acquisition by prescription of KRW 100,00,00,00,000 for each of the following reasons: (a) as to the acquisition by prescription of the instant real estate by Nonparty 1, 194; (b) on June 4, 1994; and (c) as to the acquisition by prescription of the instant real estate by Nonparty 2, 3, and 3, as to the acquisition by prescription of the ownership to Nonparty 1, 1998.

(2) Determination

(A) First, as to whether Nonparty 1’s possession of the instant real estate among the instant real estate constitutes the possession with intention to own it, whether it constitutes the possession with intention to own it or with intention to own it shall not be determined by the internal deliberation of the possessor, but shall be determined externally and objectively in accordance with the nature of the title that caused the acquisition of the instant real estate or all the circumstances related to the possession. As seen earlier, Nonparty 1 acquired the instant real estate and registered the transfer of ownership or the preservation of ownership in accordance with the intent to donate it to the Defendants, and Nonparty 1 merely occupied it in the management of the Defendants until the time of his death. Thus, it is difficult to view that Nonparty 1’s possession of the instant real estate constitutes the possession with intention to own it in relation to the Defendants, and there is no evidence to deem that Nonparty 1’s possession is the possession with intention to own it as the requirements for the prescription of ownership.

(B) Therefore, without further examination as to the remainder, the part of the claim seeking implementation of the procedure for the cancellation registration of ownership transfer registration made with respect to Defendant 2, among the conjunctive claims in this case, on the part of the preliminary claims in this case, is not recognized as the right to be preserved, the right to claim for the transfer registration based on the completion of the prescriptive acquisition against Defendant 1, who is the right to be preserved, is illegal due to the deficiency

5. Conclusion

Therefore, the part of the plaintiffs' claim for cancellation of the registration of ownership transfer against the defendant 2 is unlawful and dismissed, and all of the main and conjunctive claims against the defendant 1 and 3, and the main and other conjunctive claims against the defendant 2 are without merit. The plaintiffs' claim for cancellation of ownership transfer registration against the defendant 1 and 2 as to the main claim against the defendant 4, 5, and 6 in the attached list 1 against the defendant 1 and 2 are dismissed. The judgment of the court of first instance against the plaintiff's main claim and the conjunctive claim against the defendant 1 and 2 are just in conclusion. Thus, the plaintiffs' appeal against the plaintiff is dismissed, and the plaintiffs' request for takeover of lawsuit as of November 14, 2006 is dismissed. It is so decided as per Disposition by the assent of all Justices.

[Attachment]

Judges Park Jong-nam (Presiding Judge)