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(영문) 서울고법 1976. 4. 7. 선고 75나1115 제4민사부판결 : 상고
[부동산소유권이전등기말소청구사건][고집1976민(2),36]
Main Issues

(f) A person who has the right of inheritance in the case of a person who has been selected as a person to succeed to the head of a family, if the person to whom the head of a family has been born to the person who has died without any person to succeed to the head of a family, or

Summary of Judgment

After the death of the head of the family, the mother of the family or the head of the family will be terminated at the time of the lapse of three years without the selection of the person who will be the temporary head of the family or the post-designation of the adopted family, and the father and wife of the deceased family who has already been married to the right of the head of the deceased family, but the succession of the female to the head of the family is merely a temporary succession to the right of the head of the deceased family until the birth of the male family, and thus, if there is any subsequent adoption of the adopted

[Reference Provisions]

Articles 984 and 100 of the Civil Act

Plaintiff and appellant

Plaintiff

Defendant, Appellant

Defendant 1 and eight others

Judgment of the lower court

Cheongju District Court of the first instance (74Gahap56) Cheongju District Court (74Gahap56)

Text

1. Of the original judgment, the part against Defendant 1 among the original judgment shall be minimum.

2. Defendant 1 performed the procedure for registration of cancellation of ownership transfer registration due to the recovery under No. 3769 received on June 30, 1953 with respect to each real estate listed in the separate sheet to the Plaintiff, and confirmed that each of the above real estate is owned by the Plaintiff.

3. The remaining appeals by the Plaintiff against the Defendants are all dismissed.

4. Of the litigation costs, the costs of appeal between the plaintiff and the defendant 1 are assessed against the above defendant, and the costs of appeal between the plaintiff and the remaining defendants are assessed against the plaintiff.

Purport of claim and appeal

The judgment of the court below is revoked. The defendant 2, 3, 4, 5, 6, and 7 against the plaintiff shall revoke the judgment of the court below. The defendant 2, 3, 4, 5, 6, and 7 shall revoke the registration of cancellation of ownership transfer on April 8, 1965 with respect to the real estate stated in the separate sheet No. 1 attached hereto; the procedure for the registration of cancellation of ownership transfer due to sale on December 31, 1964; the procedure for the registration of cancellation of ownership transfer on April 25, 1970; the procedure for the registration of cancellation of ownership transfer due to sale on April 5, 1970; the procedure for the registration of cancellation of ownership transfer on June 5, 1964; the procedure for registration of cancellation of ownership transfer on October 15, 1963; the defendant 9 shall revoke the registration of ownership transfer on the real estate listed in the separate sheet No. 2 attached hereto; the defendant 1 shall revoke the registration of ownership transfer on June 24, 19, 19, respectively;

Reasons

First, we judge the plaintiff's claim against the defendant 1.

The plaintiff originally owned the land indicated in the attached list, which was owned by the non-party 1. The deceased non-party 2, who was his wife on October 17, 1932, died without his own loss to inherit Australia, and the deceased non-party 2, who was his wife, succeeded to the above real estate on December 12, 1946, but the plaintiff who was the only lineal descendant deceased on December 12, 1946, succeeded to the above real estate without any title. The deceased non-party 3, who was the deceased on January 20, 1959, was liable to cancel the above registration, and the non-party 3 was deceased on January 20, 1959, and therefore, the above defendant was liable to cancel the registration, and the above defendant did not appear on the due date for pleading, and thus, the plaintiff's assertion that the plaintiff's ownership of each of the above real estate was proved by the plaintiff and the plaintiff's each of the above real estate was proved by the plaintiff's obligation to cancel the registration.

Next, the Plaintiff’s claims against the remaining Defendants are examined.

The registration of ownership transfer due to the restoration of the deceased non-party 3, such as the entry in the attached list, is made with respect to each real estate recorded in the attached list, and the registration of ownership transfer has been made in order with respect to the real estate recorded in the attached list No. 1 through Defendant 9, and the real estate recorded in the attached list No. 2 has been completed, and the real estate in the attached list No. 2 was owned by the deceased non-party 1 was originally owned by the deceased non-party 1. The deceased non-party 2 who was his wife and succeeded to the family on Oct. 17, 1932, but the deceased non-party 1 did not have any dispute between the parties.

On March 16, 1949, after the deceased non-party 2 died, the plaintiff was divorced from the deceased non-party 2's lineal descendant and returned to the non-party 2 who was his husband on March 19, 194, and became the heir of the above real estate on March 19, the deceased non-party 2. Even if the deceased non-party 3 entered the deceased non-party 2's former head of the family on January 15, 1952 as the deceased non-party 1's head of the family, the two takes effect at the time of the deceased non-party 2's head of the family, and thus the deceased non-party 2's heir could not become the deceased's heir of the deceased non-party 2. The plaintiff 9 and 8 did not purchase the above real estate under the name of the deceased non-party 1's head of the family and the deceased non-party 2's head of the family. The plaintiff 4 and the deceased non-party 1's heir were not the plaintiff 1's head of the above real estate.

In full view of the overall purport of the party’s pleadings, Gap’s evidence Nos. 3-1 through 5, Eul’s evidence No. 1-2 (each family register and removed register) and Gap’s evidence No. 5 (Judgment), the deceased non-party No. 1 who was the original owner of each land indicated in the separate evidence No. 1 was deceased on October 17, 1932 (the deceased non-party No. 6 had already died) without the male heir No. 9, but the deceased non-party No. 2 was deceased on Dec. 12, 1946, and the deceased non-party No. 1 was cancelled on the deceased non-party No. 3’s request for the above family register No. 9, the deceased non-party No. 1, who was the deceased non-party No. 5’s deceased non-party No. 1, who was the deceased non-party No. 2’s deceased non-party No. 9, who was the deceased non-party No. 1 and the deceased No. 1. 2’s. 1, the deceased No. 1. 9.

However, in Korean custom under the Gu residents' law, when three years have passed without the selection of the mother, mother, and wife after the death of Australia, or when the adopted child was selected after the death of the deceased, the deceased non-party 3 was to be the deceased non-party 1, the deceased non-party 6, the deceased non-party 1, the deceased non-party 6, the deceased non-party 6, the deceased non-party 6, and the deceased non-party 6, the deceased non-party 1, the deceased non-party 1, the deceased non-party 2, the deceased non-party 1, the deceased non-party 2, the deceased non-party 1, the deceased non-party 1, the deceased non-party 6, the deceased non-party 1, the deceased non-party 1, the deceased non-party 6, the deceased non-party 1, the deceased non-party 1, the deceased non-party 2, the deceased non-party 1, the deceased non-party 2, the deceased's inheritance and the deceased non-party 2.

Ultimately, the judgment of the court below which dismissed the plaintiff's claim against the defendant 1 on the ground that the plaintiff's claim is reasonable, and that the plaintiff's appeal is reasonable only for the above part, and therefore the plaintiff's appeal is revoked and accepted the plaintiff's claim. The judgment of the court below with respect to the remaining claims against the defendants is just and without merit, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition by applying Articles 95, 96, and 89 of the Civil Procedure

Judges Shin Jong-ho (Presiding Judge)

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