2018Na2000303 Registration of transfer of ownership

A

Attorney Go Young-deok, Counsel for the defendant-appellant

1. B

2. C

3. D;

4. E.

Since it is a minor, the legal representative father B

[Judgment of the court below]

Suwon District Court Decision 2016Gahap20444 decided December 15, 2017

October 18, 2018

January 31, 2019

1. Revocation of a judgment of the first instance;

2. As to the Plaintiff’s share of 3/9 shares in the attached list, Defendant B, as to the shares of 2/9 shares in Defendant C, D, and E, as to each of the shares of 2/9 shares, shall implement the registration procedure for transfer of ownership based on sale on January 29, 193.

3. The total costs of the lawsuit shall be borne by the Defendants.

1. Purport of claim

In addition, as stated in Paragraph 2 of the Disposition, Defendant B, as to the share of 3/9 of the instant real estate, performed the registration procedure for ownership transfer on January 26, 2013 with respect to the share of 2/9, Defendant C, D, and E, respectively, on the part of the Plaintiff (the Plaintiff added the conjunctive claim at the trial).

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is the mother of F, Defendant B is the wife of F, and the remainder of the Defendants are F’s children.

B. On January 29, 1993, the Plaintiff holds a sales contract (hereinafter referred to as “the instant sales contract”) and a receipt stating the following. All of the contents of the above sales contract and a receipt are printed in a similar word, and the F’s seal is affixed to the name of the “F” stated in the above sales contract and a receipt.

The seller of real estate: The seller and the buyer shall enter into a sales contract by mutual agreement as follows: The indication of a building for the part of H apartment complex for 1 unit of Article 1 (Indication of Real Estate): The indication of a building for the part of H apartment complex for 1 unit of H apartment complex located in Seongdong-gu, Seongbuk-gu: The indication of a building for the part of 1 unit of H apartment complex for 1 unit of Y apartment-type G: The indication of a building for the part of 1 unit of Y apartment-type: The sale price and the due date shall be as follows: (1) the sale price and the due date of the sale under Articles 70.45 and 2 (sale Price and Time):

Receipt Date: 130,000,000 won: He received in a fixed manner the full payment of the purchase price of H apartment I and H apartment J. Ha. FA on January 29, 1993.

C. The F died on July 2, 2002 (hereinafter referred to as “F”) and Defendant B, who was his wife, jointly succeeded to the rights and obligations of the deceased’s property in shares of 2/9, respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, and 4, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff lent approximately KRW 300 million to the Deceased, such as the sale price of the instant real estate, marriage funds, etc., and prepared the instant sales contract by having the Deceased receive the instant real estate from the Deceased as a repayment thereof. Therefore, the Defendants, as the inheritor of the Deceased, are liable to implement the procedure for ownership transfer registration for the instant real estate on January 29, 193 (main claim).

Even if the sale is not recognized, the Plaintiff has occupied the instant real estate in peace and openly with the intent to own it for at least 20 years. As such, the Defendants are obligated to implement the procedure for the registration of ownership transfer on January 26, 2013 to the Plaintiff on the ground of the completion of the prescriptive acquisition (preliminary claim).

B. Judgment as to the primary cause of action

The facts that the seal of the deceased’s name is affixed to the sales contract and the receipt of this case are as seen earlier. In full view of the following circumstances: (a) Nos. 1, 2, 11, 29, 30, 31 through 34, 37, 39, and 49; (b) Nos. 2, 3, and 5-2; and (c) Nos. 2, 5-2; and (d) the court of first instance’s appraisal as to the L/C’s appraiser, and M; and (b) the entire arguments, each of the seals on the sales contract and the receipt’s name were affixed with the deceased’s true seal, and thus, the authenticity of the sales contract of this case is presumed to have been established. In addition, in light of the above circumstances, the evidence submitted by the Defendants alone cannot be deemed to have been forged against the deceased’s will; and (c) as long as the authenticity of the sales contract, which is a disposal document, is recognized as having no other evidence to acknowledge the Defendants’s ownership between the Plaintiff and the deceased.

① The written appraiser L of the first instance trial conducted an appraisal as to whether the writing in question conforms to the written evidence No. 11 (written consent of the deceased) by comparing the documents submitted by the Defendants to acknowledge the authenticity of the document No. 5-2 (written agreement for the preparation of the network), and as a result, it presented an appraisal opinion that the writing in the evidence No. 11 is identical to the writing in the evidence No. 5-2 in the evidence No. 5-2. Therefore, the evidence No. 11 can be acknowledged as being written by the deceased.

② As seen above, the deceased’s seal is affixed on the document No. 11, which is recognized as a document by the deceased’s own writing. The above seal appears to coincide with the deceased’s seal affixed on the sales contract (No. 1) and the receipt (No. 2) of this case. The evidence No. 11 is a document to the effect that the deceased consented to the lease of the real estate in this case, and the deceased’s seal is affixed on the upper part between the name and the signature of the deceased. However, it is difficult to view that the above document can function as a real estate intermediary or lessee’s certificate of authority granted by the deceased.

③ With respect to the consistency of the deceased’s written consent (No. 11) and each of the seals on the sales contract (No. 11) and receipts (No. 2) of this case, the Defendants asserted that the deceased’s seal was affixed at will on the evidence No. 1, No. 2, and No. 111 at the time the Plaintiff brought the lawsuit of this case, and applied for an appraisal. The appraiser M of the first instance court’s seal imprint was presumed to have been prepared at around 192 at around 192 as a result of comparison with the substitute documents prepared in 192 as the result of the interview and test of the pen book No. 11 on the evidence No. 11, No. 1, 2, and 11 at the time of the Plaintiff’s filing the lawsuit of this case, and as a result, compared with the substitute documents prepared in 193, No. 1, 2, and 193 at the time of signing and sealing the seal No. 1993 at around 193.

④ The Defendants asserted that the sales contract of this case was not made by the deceased’s will but by the Plaintiff’s arbitrary creation and sealing of a seal similar to the deceased’s seal imprint. However, as seen earlier, “A” No. 11 is presumed to have been made in 1992, which is the year indicated therein, and the sales contract and receipts of this case are presumed to have been made in 193, respectively. From the time of filing the lawsuit of this case, it is difficult to readily understand that the Plaintiff, prior to approximately twenty-three (23) years prior to the filing of the lawsuit of this case, made a seal of a pattern similar to the deceased’s seal imprint, and forged the above written consent and sales contract at intervals of one (1) year, and then filed the lawsuit of this case by using it

⑤ As of February 28, 1992, the date on which the deceased’s seal imprint registration was made is prior to the date on which the deceased’s seal imprint registration was made under the instant sales contract. However, in view of the fact that the Plaintiff and the deceased’s seal imprint is one’s mother, and that the seal imprint and the seal imprint are necessary for the procedures for the registration of ownership transfer, and that it is not necessary for the preparation of the sales contract, the seal imprint and the seal imprint are not necessarily necessary, under the instant sales contract. If the Plaintiff made a seal imprint using a seal imprint of the deceased’s seal imprint, it cannot be deemed that the seal imprint other than the seal imprint are affixed. If the Plaintiff made a seal imprint using a copy of the deceased’s seal imprint, it is more similar to the seal imprint’s seal imprint. The seal imprint and the seal imprint

6. In this case, a document with a seal affixed, other than the deceased’s seal imprint, was not submitted, and the form of the sales contract of this case differs from that of other contracts written by the deceased, but such circumstance does not interfere with the recognition of the authenticity of the sales contract of this case.

7) The Defendants asserted that the instant sales contract and receipt document of the instant sales contract and receipt were made up as N.N., offered as N. 0 in 1994, and since 1995, which was set up in P, the sales contract and receipt of the instant case, which was made up as the date on which the transfer was made, were false. However, as seen earlier, there is no obvious evidence to acknowledge that the time when the sales contract and receipt of the instant sales contract are set up in 193 years, which is the year indicated in the pertinent document, was 193, the date when the sales contract and receipt of the instant sales contract were set up was set up.

8) The Deceased purchased the instant real estate from 1990 to 1993, and paid the sum of KRW 101,610,000 in total without a financial institution’s loan. It is difficult to view that the Deceased’s occupation, career, age, etc. at the time of the Deceased was prepared by his own means. In light of such circumstances, it is highly likely that the Plaintiff, a mother, lent the amount equivalent to the above sales price to the Deceased. In light of such circumstances, the Deceased appears to support the motive for the Plaintiff to sell the instant real

9) The Plaintiff is residing in the instant real estate from around 1993 to 25 years. On the other hand, it appears that the deceased or the Defendants were not actually residing in the instant real estate. If the deceased were not sold to the Plaintiff, the reason why the Plaintiff had the deceased continue to reside is not explained.

C. Determination as to the defendants' assertion

Even if the Plaintiff and the Deceased were to prepare the sales contract of this case, the Defendants asserted to the effect that the deceased borrowed money from the Plaintiff as the sale price, marriage fund, business fund, etc. of the instant real estate, and that the Plaintiff would try to resell the instant real estate and repay it with its profits, but the disposal of the instant real estate is difficult due to the restriction on resale, and it is difficult to repay it with the deposit money. As such, the Defendants asserted to the effect that the sales contract of the instant real estate was prepared, and that the relevant contract is merely

In order to regard the legal nature of the contract under the instant sales contract between the Plaintiff and the Deceased as the collateral security contract, there must be an agreement between the Plaintiff and the Deceased on the establishment of the collateral security right, and the burden of proof as to the existence of such an agreement on the establishment of the collateral security right lies on the Defendants asserting that the agreement on the establishment of the collateral security right is a collateral security contract. In light of all the above circumstances, the evidence alone presented by the Defendants is insufficient to recognize that there exists an agreement on the establishment of the collateral security right to the instant real estate between the Plaintiff and

D. Sub-determination

Therefore, among the real estate in this case, Defendant B is obligated to perform the registration procedure for ownership transfer on January 29, 1993 with respect to Defendant B’s share in 3/9, and the remaining Defendants are obligated to perform the registration procedure for ownership transfer on January 29, 1993 with respect to each share in 2/9 of the real estate in this case (as long as referring to Plaintiff’

3. Conclusion

Therefore, the plaintiff's primary claim is accepted for all reasons, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked and all of the plaintiff's primary claim is accepted, it is so decided as per Disposition.

Judges of the presiding judge;

Judges Kim Jae-hyung

Judges Lee Dong-soo

A person shall be appointed.