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(영문) 대전고등법원 2017.09.27 2016나11101
납골당분양권인도
Text

1. The plaintiff's claim that the court changed in exchange is dismissed.

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

Reasons

1. The reasoning for this part of the facts constituting the basis of the instant case is as stated in the relevant part of the first instance judgment, except for the addition of the following to ten (3) and ten (10) pages of the first instance judgment. As such, this part of the facts are cited by the main text of Article 420

“F. On August 17, 2016, the Defendant’s Intervenor succeeded to all rights and duties incidental to the authorization, permission, and management of the instant charnel and its land, and a charnel house, and reported the transfer and acquisition of charnel facilities to the Geumsan-gun, the competent administrative agency, around November of the same year.”

2. Judgment on the main defense of this case

A. The purport of the Defendant’s argument D and E’s transfer to the Plaintiff of the right to sell 30,000 of the instant charnel houses constitutes an assignment of claims, the main purpose of which is to file the instant lawsuit, and thus, Article 6 of the Trust Act is applied mutatis mutandis and null and void.

Therefore, the Plaintiff’s lawsuit against the Defendant is unlawful.

B. 1) In a case where the assignment of a claim, etc. primarily takes place with the intention of making a procedural act, Article 7 of the Trust Act shall be deemed null and void, even if the assignment of claim does not constitute a trust under the Trust Act. Whether it is the principal purpose of making a procedural act shall be determined in light of all the circumstances, including the course and method of concluding the assignment of claim contract, the interval between the transfer contract and the filing of the lawsuit, and the personal relationship between the transferor and the transferee (see, e.g., Supreme Court Decision 2000Da4210, Dec. 6, 2002). However, there is no evidence to prove that the assignment of claim primarily takes place between the Plaintiff, E, and D with the intent of enabling

Rather, comprehensively taking account of the overall purport of the arguments among the statements in the evidence Nos. 1 through 3, the Plaintiff acquired the ownership of the instant charnel in order to conduct a joint business with an independent party intervenor, etc. based on the ownership of the instant charnel ownership.

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