[1] Whether an administrator of an absentee's real estate can file a lawsuit claiming ownership transfer registration based on the sales contract if he/she obtains the court's permission for excess of his/her authority after the judgment against a lawsuit claiming ownership transfer registration becomes final and conclusive on the ground that the administrator did not obtain the court's permission (affirmative)

[2] In a case where an absentee administrator agreed to perform the procedure for filing an application for permission for a real estate sales contract concluded in excess of his/her authority and fails to perform such procedure, whether the other party may seek the performance of the procedure for filing an application for permission against the absentee property administrator (affirmative

[3] In a case where an administrator of an absentee who is requested to perform the procedure for permission under an agreement to implement the procedure for permission to the court loses the right to manage by being dismissed during the lawsuit, whether the procedure is interrupted and the newly appointed administrator takes over the lawsuit (affirmative)

[1] Even if an administrator of an absentee's sales contract for an absentee's ownership of real estate was concluded in excess of his/her authority and a claim for the performance of the procedure for the registration of ownership transfer became final and conclusive on the ground that such a claim is null and void due to the lack of the court's permission, if the court's permission for excess of his/her authority is obtained after the judgment of loss becomes final

[2] The agreement that an administrator of an absentee upon the appointment of a court agrees to perform the procedure for filing an application for permission for a real estate sales contract concluded in excess of his/her authority constitutes an act of management authority. In the event that such an agreement is not fulfilled, the buyer may file a lawsuit against the administrator for performance of the agreement.

[3] In a case where an administrator, on behalf of an absentee, agrees to sell and sell an absentee's real estate on behalf of the absentee and to perform the procedure for filing an application for permission, and thus it is legitimate to deem that the administrator's status is a party in a lawsuit, but in the procedure commenced by the implementation of the procedure for filing an application for permission, the administrator is a party in a lawsuit. If the court decides to grant permission on behalf of the absentee, the sales contract is effective on behalf of the absentee, and the effect of the contract is substantially attributable to the absentee. Therefore, in a case where an administrator, who is forced to perform the procedure for filing an application for permission, loses the right of management due to a dismissal during the lawsuit, the procedure is suspended and the new appointed

[1] Articles 25 and 118 of the Civil Act, Articles 202 and 226 of the Civil Procedure Act / [2] Articles 25 and 118 of the Civil Act, Article 226 of the Civil Procedure Act / [3] Article 25 of the Civil Act, Article 215 of the Civil Procedure Act, Articles 41 and 42 of the Family Litigation Rules

[1] Supreme Court Decision 65Da1603 delivered on February 21, 1967 (No. 15-1, 108) / [2] Supreme Court Decision 99Da19278 delivered on December 26, 200 (Gong2001Sang, 358) / [3] Supreme Court Decision 88Da26987 delivered on November 13, 1990 (Gong191, 57)

Plaintiff

Defendant, the administrator of Nonparty 1, who was replaced by Nonparty 2, is the taking-off of the lawsuit by Nonparty 2

Supreme Court Decision 99Da19278 delivered on December 26, 2000

Seoul High Court Decision 2001Na5403 delivered on May 22, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

Although the Plaintiff sought the implementation of the procedure for the transfer registration of ownership against Nonparty 1 on the ground of the instant sales contract against Nonparty 1, the instant sales contract was concluded by Nonparty 2, who was an administrator of Nonparty 1, and the claim was dismissed and finalized on the ground that it was null and void due to the lack of court’s permission, the Plaintiff may file a lawsuit for the transfer registration under the instant sales contract once the judgment against the Plaintiff became final and conclusive (see Supreme Court Decision 65Da1603, Feb. 21, 1967).

Therefore, it cannot be said that the claim for the execution of the procedure for filing an application for permission based on the agreement regarding the instant sales contract in excess of the authority of Nonparty 2, the administrator of Nonparty 1, who was the non-party 2, does not have any interest in the lawsuit or conflict with the res judicata

This part of the grounds of appeal cannot be accepted.

2. On the second ground for appeal

The purport of the judgment of remanding a case where: (a) an administrator by means of appointment of the court agrees to perform the procedure for filing an application for a license with respect to a real estate sales contract concluded in excess of the authority of the administrator; and (b) the buyer, in the event that such agreement is not fulfilled, may compel the administrator to file a lawsuit against the administrator (the subsequent procedure is completely separate from the court’s permission; and). As can be seen, in a case where the administrator, on behalf of an absentee, agrees to sell and sell an absentee’s real estate on behalf of the absentee and implement the procedure for filing an application for a license to the buyer and thereby, is forced to perform the procedure for filing the application for a license by the buyer, the status of the administrator is a party in a lawsuit, but if the administrator makes a decision to grant a license in the procedure commenced by the procedure for filing the application for a license, the sales contract becomes effective on behalf

Therefore, it is reasonable to view that the lawsuit proceedings are suspended and the new appointed administrator takes over the lawsuit in a case where the administrator of an absentee who is able to perform the contract based on an agreement to implement the procedure for application for permission is dismissed during the lawsuit and loses the management right.

In the same legal principle, the judgment of the court below that the non-resident non-party 1's administrator is liable to perform the procedure for filing an application for permission of the family court for excess of authority in relation to the sales contract of this case on the premise that the non-party 2's administrator was dismissed during the lawsuit of this case and the proceedings are suspended and replaced and the defendant takes over the lawsuit of this case. There is no error of law by misunderstanding

This part of the grounds of appeal cannot be accepted.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)