[1] The purpose of the special representative system under Article 921 of the Civil Code and the matters to be indicated in the text of the judgment on appointment

[2] The validity of the judgment on appointment and the authority of the special representative where there is no indication of legal act to be handled by the special representative in the disposition of the judgment on appointment of the special representative

[1] The special representative system under Article 921 of the Civil Code aims to prevent abuse of parental authority and protect the interests of minors by restricting the person with parental authority's right of representation and right of consent, so it is difficult to expect a fair exercise of parental authority by a person with parental authority if there is a conflict of interests between the person with parental authority and the person with parental authority, or between the persons subject to parental authority, and to protect the interests of the minor. Thus, the special representative must individually appoint a specific juristic act in conflict of interests. Therefore, the application for the appointment of the special representative must indicate the juristic act by specifying the juristic act to be dealt with by the special representative and indicate it in principle, and the court shall not grant the special representative a comprehensive authority to deal with the juristic act to be dealt with by a minor.

[2] It is not desirable for the court to state only the content that the special representative is appointed as a special representative for a minor without indicating the legal act to be handled by the special representative in the order of the decision. However, even in the case of adjudication on these contents, the authority of the special representative is limited to the specific juristic act specified in the application for the appointment of the case, and there is no authority to deal with other juristic acts.

[1] Article 921 of the Civil Code / [2] Article 921 of the Civil Code

Plaintiff 1 and one other (Attorney Lee Jae-sung, Counsel for the plaintiff-appellant)

Defendant

Busan High Court Decision 95Na4537 delivered on November 24, 1995

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. On the first ground for appeal

The purport of the court below's rejection of the plaintiffs' assertion that the deceased non-party 1 agreed to return the land, etc. of this case to the plaintiffs in around 1976 is insufficient to recognize it only by the evidence presented by the plaintiffs, and it can be viewed that the court below rejected all of the above evidences unless there are some deficiencies in its explanation, and in light of the records, it is just and acceptable to do so. Thus, there is no error of law in violation of the law, such as the theory of lawsuit, or in violation of the Supreme Court's precedents concerning the interpretation and application of Article 187 of the Civil Procedure Act. All of the precedents cited by the theory of lawsuit are different from this case, and it is not appropriate to apply this case as it is. The argument is without merit.

2. On the second ground for appeal

The system of special representative under Article 921 of the Civil Act is difficult to expect a fair exercise of parental authority against a person with parental authority in cases where conflicts of interest between the person with parental authority and the person subject to the parental authority or between the persons subject to the parental authority. Thus, the purpose of the system is to prevent abuse of parental authority and protect the interests of the minor by restricting the person with parental authority's power and right of consent, and by allowing a special representative appointed by the court to exercise these rights. Thus, the special representative must individually be appointed with respect to a specific juristic act contrary to interests. Therefore, the application for the appointment of the special representative must specify and indicate the juristic act to be dealt with by the special representative, and the court should also specify the juristic act to be dealt with by the special representative at the time of the decision on the appointment of the representative, and it cannot be said that the court can comprehensively grant the special representative the authority to appoint a specific representative, without specifying the juristic act to be dealt with by the special representative at the time of the decision on the appointment of the special representative, and it is not desirable that the special representative is appointed as a specific representative's right in the application.

However, if a registration on real estate has been made, such registration shall be presumed to have been made lawfully in the cause and procedure unless there are special circumstances, and this shall not be the case where the establishment registration on real estate owned by a person with parental authority has been made under another person's name in order to secure the obligation of a person with parental authority. Thus, the person claiming the invalidation of the establishment registration on real estate in the nearest area shall prove that the registration has been made without the authority of the special representative.

On March 15, 1961, with respect to the instant case, where the ownership transfer registration was made under the name of the deceased non-party 2, who is the father of the plaintiffs, as legally determined by the court below, and the ownership transfer registration was made under the name of the plaintiffs on March 15, 1961, and thereafter, on September 28, 1967, each establishment registration was made under the name of the non-party 2, the debtor as of April 18, 1967, and on August 21, 1968, where the establishment registration was made under the name of the non-party 4 and the non-party 5, whose mother of the debtor as of August 21, 1968 was the minor at the time of the registration of the instant collateral security, and the burden of proof as to the Plaintiff's share registration is presumed to be invalid by a special representative without authority, and thus, it is still recognized that the registration was still null and void under the ground of appeal No. 1981, Dec. 16, 1987.

The court below rejected the plaintiff's assertion on the following grounds: since the plaintiff 2 was a minor at the time of the registration of the instant collateral security, the deceased non-party 2, who is his person with parental authority, applied for appointment of a special representative to act on behalf of the same plaintiff and let the special representative execute the mortgage contract on behalf of the same plaintiff, and the decision to appoint a special representative to act on behalf of the same plaintiff is null and void; therefore, the registration of the instant collateral security is null and void; therefore, the special representative's appointment of a representative is made by a non-authorized person. Thus, the judgment of the court below did not specify the legal act to act on behalf of the special representative at the time of the decision to appoint a representative on behalf of the same plaintiff; on the ground that it did not specify the legal act on behalf of the plaintiff, as alleged by the plaintiff, the decision cannot be deemed null and void or a specific legal act on behalf of the special representative is null and void as a matter of course, and there is no error in the misapprehension of legal principles and validity of Article 21 of the Civil Act.

Furthermore, if a special representative was granted the authority to set up the right to collateral security on April 18, 1967, which became the holder of the right to collateral security on April 18, 1967, pursuant to the above evidence No. 1-1, the above right to collateral security was legitimate. If the above right to collateral security was legitimate, the above right to collateral security was set up on April 18, 1967, and as long as the above right to collateral security was registered on September 28, 1967, the above right to collateral security was registered on September 28, 1967, which made the debtor to the above non-party No. 2 as the debtor on August 21, 1968, and the registration to set up the collateral security under the name of the above Choung Bank and the name of the non-party No. 4 and the non-party No. 5, who was the owner of the right to collateral security on April 18, 1967, the right to collateral security was not legitimate.

3. Therefore, all appeals are dismissed, and the 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 Jae-soo (Presiding Justice)