[1] Whether a report of renunciation of inheritance after the statutory period under Article 1019(1) of the Civil Act can be deemed as a consultation division of inherited property (affirmative)

[2] The legal relationship between the transferee of the building and the owner of the site in a case where the building on which statutory superficies has been established is transferred before the registration of superficies was made

[3] The case where the appellate court is allowed to bring an action without the other party's consent

[1] Since a report of renunciation of inheritance filed by the remaining inheritors by means of a neglect of inheritance to one co-inheritors after the expiration of the period stipulated in Article 1019(1) of the Civil Code, even if the effect as a waiver of inheritance is nonexistent, it shall be deemed that the agreement has been made between the co-inheritors on the inherited property with the purport that one co-inheritors acquire the entire inherited property exceeding the inherent inherited portion and the remaining inheritors do not acquire it entirely.

[2] In a case where a building owner transferred a building prior to acquiring legal superficies for the ownership of a building, barring special circumstances, barring any special circumstance, it cannot be deemed that the building owner transferred the legal superficies for the ownership of the building along with the building, and thus, the transferee of the building may seek implementation of the procedure for the registration of creation of superficies and the registration of transfer thereof in sequence against the transferor and the owner of the site who purchased the land from him/her pursuant to the principle of subrogation by creditors. In order to seek removal of the building from the transferee of the building who is in the position to acquire legal superficies, the owner of the building cannot be permitted under the principle of good faith, as the person

[3] If the first instance court has sufficiently deliberated on the substantial issue, which forms the basis of a counterclaim claim, with respect to the cause of the principal claim and method of defense, it cannot be said that the other party would lose the interest of the court of the first instance or significantly delay the proceedings, even if the appeal court permits the other party to file a counterclaim without the other party’s consent. Therefore, in such a case, the counterclaim proposal at the appellate court should be allowed regardless of the other party’s consent.

[1] Articles 1013, 1019, and 1041 of the Civil Act / [2] Articles 2, 187, and 366 of the Civil Act / [3] Article 382 of the Civil Procedure Act

[1] Supreme Court Decision 88Nu9305 delivered on September 12, 1989 (Gong1989, 1415), Supreme Court Decision 90Nu5986 delivered on December 24, 1991 (Gong1992, 707) / [2] Supreme Court Decision 88Meu1538 delivered on May 9, 1989 (Gong1989, 902), Supreme Court Decision 91Da658 delivered on May 28, 1991 (Gong193, 1457) / [3] Supreme Court Decision 73Da2031, 2032 delivered on May 28, 1974 (Gong1974, 7928), Supreme Court Decision 105Meu168 delivered on May 196, 1994

Plaintiff (Counterclaim Defendant) (Attorney Choi Jong-sung, Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Jeon Soo-young, Counsel for defendant-Counterclaim Plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) 2

Jeonju District Court Decision 94Na265, 272, 1531 delivered on September 7, 1995

The appeal by the Plaintiff (Counterclaim Defendant) is dismissed. The part of the judgment of the court below against Defendant 1 regarding the principal lawsuit and counterclaim is reversed, and that part of the case is remanded to the Panel Division of the previous District Court. The costs of appeal by the Plaintiff (Counterclaim Defendant) are assessed against the Plaintiff (Counterclaim Defendant).

1. We examine the Plaintiff (Counterclaim Defendant)’s grounds of appeal.

The court below held that since Defendant 2 purchased ownership, not the right to cultivate 224 square meters of the instant land, but the Plaintiff had been aware that Defendant 2 had already acquired 224 square meters of the instant land at the time of entering into a sales contract for the instant land, the Plaintiff actively participated in the act of breach of trust by Nonparty 1 and purchased the said land, the sales contract for the instant land between the Plaintiff and Nonparty 1 is null and void as an anti-social juristic act. In light of the relevant evidence in comparison with the records and records, the court below’s above recognition and judgment is acceptable. As discussed in the judgment of the court below, it cannot be deemed that there was an error of law by misapprehending the facts affecting the conclusion of the judgment or by misapprehending the legal principles on double selling or recognizing the facts affecting the judgment in violation of the rules of evidence, and the issue of whether Defendant 2 agreed with the dual seller after the closing of argument in the court below did not affect

2. We examine Defendant 1’s grounds of appeal.

A. As to the ground of appeal on the principal lawsuit

On August 31, 1954, the deceased non-party 2 acquired ownership by fully paying the price of 407 square meters, which is the property belonging to the same person, and upon the death of the deceased non-party 2, the non-party 1, one of his co-inheritors, who is his co-inheritors, managed the above land alone on his own around 1980, and sold the unregistered building again to the non-party 3 on the ground. On April 4, 1981, the above non-party 3 recognized that on November 2, 1981, he sold the above building again to the defendant 1 on the same year. The court below rejected the plaintiff's assertion that the land and the building belongs to the same person, and the land and the building should be owned by the same person, and the land and the building should be owned by other causes. The non-party 1 is merely one of co-owners of the above land, and it cannot be asserted that the above co-owned land had been sold to another person on his own land.

However, according to the records, the above non-party 1 sold the land of this case to the plaintiff on May 1989 and completed the registration of ownership transfer as of April 11, 1991, and it can be recognized that the remaining inheritors obtained waiver of inheritance from the co-inheritors before entering into the above sale contract. Thus, even if there is no validity as waiver of inheritance after the remaining inheritors did exceed the period prescribed in Article 1019(1) of the Civil Act, it shall be deemed that the agreement was reached between the co-inheritors about the inherited property and the remaining inheritors did not acquire the inherited property entirely, and the ownership of the building of this case shall not be deemed to have been acquired at all by the owner of the building of this case (see, e.g., Supreme Court Decisions 88Nu9305, Sept. 12, 198; 90Nu5986, Dec. 24, 191).

Nevertheless, the court below determined that the above non-party 1 sold the above unregistered building to the above non-party 3 and transferred its possession to the above non-party 3, regardless of whether it was registered, and that the ownership of the building was naturally transferred from the above non-party 1 to the above non-party 3 regardless of whether it was registered, and that the non-party 3 denied the occurrence of statutory superficies under customary law at the time of the purchase of the building and immediately rejected the defense as to the legal superficies under customary law of the defendant. Thus, the court below erred in the misapprehension of legal principles as to the legal superficies under customary law, and it is obvious that such illegality affected the judgment, and therefore, there is a reason to point this out.

B. As to the ground of appeal on the counterclaim

The court below held that the counterclaim by the above defendant 1 is unlawful on the ground that since Article 382 of the Civil Procedure Act provides that the counterclaim by the appellate court may be filed with the consent of the other party and the other party shall be deemed to have consented to the counterclaim when the other party has presented a pleading on the merits without raising any objection, since it is evident in the record that the counterclaim by the defendant 1 against the plaintiff reaches the original court, which the plaintiff consented to the counterclaim before the plaintiff presented his pleading on the merits, is unlawful.

However, if the first instance court has sufficiently deliberated on the substantial issue, which forms the basis of a counterclaim claim, with respect to the cause of the principal claim and the method of defense, it cannot be said that the other party would lose the interest of the court of the first instance or significantly delay the proceedings, even if the counter-claim claim is permitted without the other party's consent. In such a case, regardless of the other party's consent, it is necessary to allow the counter-claim at the appellate court (see Supreme Court Decision 93Meu1051, 1068, May 10, 1994).

According to the records, Defendant 1 submitted a written reply to the court of first instance against the plaintiff's main claim for removal of the building and delivery of the site to the same defendant. At the same time, as evidence of the fact that the plaintiff, who was the construction of the building in this case, succeeded to the above non-party 1 and the non-party 3 through the above non-party 3, the above non-party 1 and the sales contract (Evidence 2-2) with the above non-party 3, respectively, and submitted the above non-party 4 with the above non-party 1 and the non-party 4 with the above non-party 4 with the same circumstance as the above non-party 1's entry in the above sales contract and the fact that he acquired the above building from the above non-party 1 with the above non-party 1 with the above non-party 1 and the co-party 2 with the above non-party 1's legal superficies set forth in the court of first instance, the court of first instance rejected the plaintiff's defense as to the above counter-party 1's claim.

Nevertheless, the court below rejected Defendant 1’s counterclaim as unlawful solely on the ground that the remaining Plaintiff, who misunderstanding the legal principles as to the filing of a counterclaim in the appellate court, did not consent to the filing of a counterclaim. The court below erred by misapprehending the legal principles as to the conclusion of the judgment, and there is a ground to point this out.

3. Conclusion

Therefore, the Plaintiff’s appeal of this case is dismissed as it is without merit, and the part against Defendant 1 as to the principal lawsuit and counterclaim is reversed, and this part of the case is remanded to the Jeonju District Court Panel Division. The costs of appeal by the Plaintiff are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)