A. The case that reversed the judgment of the court below on the grounds of violation of the rules of evidence

B. Whether a real estate truster may directly demand a third party to exclude the infringement of the real estate (negative)

A. The case that reversed the judgment of the court below on the grounds of violation of the rules of evidence

B. Where a property is entrusted to a third party, only the trustee may seek exclusion from the infringement on the property as the owner in an external relationship, and the truster may exercise the trustee’s right on behalf of the trustee, if necessary to preserve the trustee’s right.

A. Article 187 of the Civil Procedure Act (title trust)

B. Supreme Court Decision 77Da1079 Delivered on September 25, 1979

[Defendant-Appellee] Chang-gun, Chang-gun, Inc., Counsel for defendant-appellee-appellant-appellee-appellant]

Defendant 1 and one other, Defendant 1 et al., Counsel for the defendant-appellant-appellee

Seoul High Court Decision 87Na2894 delivered on January 29, 1988

The judgment below is reversed and the case is remanded to Seoul High Court.

As to the Defendant’s ground of appeal:

1. The judgment of the court below regarding the establishment of the plaintiff race is just and cannot be said to have any defect in the rules of evidence in the process of cooking the evidence which was conducted to recognize the existence of the plaintiff race. In addition, insofar as the existence of the plaintiff race is recognized, it does not err in the misapprehension of the rules of evidence on the ground that the time of establishment was not specified in detail (see Supreme Court Decision 8Da89 delivered on April 11, 1989). The argument on this issue is groundless.

2. In full view of the adopted evidence, the judgment of the court below acknowledged the following facts: (a) Nonparty 1, the 17-year-old grandchildren of the plaintiff species, purchased the forest of this case on behalf of the plaintiff species on behalf of the plaintiff species; (b) held the title trust on behalf of the plaintiff species; and (c) as a resolution of the clan General Meeting on January 9, 1981, terminated the title trust

However, the fact-finding of the lower court is difficult to accept if the evidence adopted in recognizing that the forest is owned by the Plaintiff as above. According to the evidence No. 3-1, No. 2, and evidence No. 8 (General Meeting Director's Record), the forest is owned by the Plaintiff race. However, although the forest is owned by the Plaintiff race, it is prepared at a general meeting on January 9, 1981, which decided that the forest is returned from Defendant I, and it is difficult to use it as evidence that it is owned by the Plaintiff race as a forest.

The evidence No. 5-1 through No. 9 (L. 9) now is the shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot(shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-shot-s.

In addition, the non-party 3 or the non-party 5 of the court below prior to the remanding of the court of first instance and the court of first instance did not attitude around 1892 that the plaintiff had purchased the forest land of this case during the time of 1892, and it cannot be said that the non-party 6 or 3 years of age at the time of the situation of the non-party 2, which was the time of the situation of the non-party 2, purchased the forest land as a representative of the clan in which the non-party 1 purchased the forest as a personal qualification. The non-party 6 of the court of first instance stated that the forest of this case was owned by the plaintiff 2 and that the forest of this case was not the property of the individual, but this part alone cannot be said to be readily concluded that the right of the ownership is a part of the plaintiff 2.

As above, it is difficult to view that the evidence adopted by the court below alone purchased the forest land of this case and made a title trust to Nonparty 7. In light of the Plaintiff’s members in around 1890, who asserted that the Plaintiff was purchasing the forest land of this case, Nonparty 1, who purchased the said forest land on behalf of the Plaintiff, is only his father, his father, and is only the lineal descendants of his father, spora, spora, spora, and spora, whose father, and son, and it is a lineal descendants of spora, spora, and spora, who are his father, and it is difficult to accept the Plaintiff’s assertion. In addition, even though there is no custom that the clan’s property is entrusted only to the name of the clan, it is difficult to accept the Plaintiff’s claim.

The judgment of the court below shall not be against the rules of evidence.

3. We examine the plaintiff's claim against the defendant 2.

In a case where a property is entrusted to another person, only the trustee may seek the exclusion against the infringement by a third party on the property as the owner, and if necessary to preserve the right against the trustee as the truster (see Supreme Court Decision 77Da1079, Sept. 25, 1979). In this case, the Plaintiff asserts that the forest of this case was trusted by the Plaintiff to Defendant 1, but the Plaintiff sought cancellation directly from the above Defendant 2 without subrogation of Defendant 1 on the provisional registration of this case for which the invalidity of the claim was made by the Defendant 2, and thus, the wife of the lower court, which received such a claim, may not be erroneous. The arguments are returned to the reasonable ground.

Since the above illegality of the judgment below is deemed to fall under Article 12 (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, the judgment of the court below shall be reversed and the case shall be remanded to the court below without making a judgment on

It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)