Cases of illegality in the determination of the merits without rejection of an application for intervention by an independent party;

In the case where the intervenor seeks a housing name map against the defendant on the ground that the plaintiff is the owner, since the plaintiff sold the original house to the plaintiff's husband, and then cancelled the agreement, the reason why the registration of the transfer to the plaintiff was extinguished. Accordingly, the independent party intervention application against the plaintiff seeking the cancellation of the registration of transfer to the defendant and the confirmation on the ownership of the plaintiff can be established only for the part that the plaintiff seeks the cancellation of the registration of transfer to the plaintiff on the ground that the registration of transfer to the defendant was cancelled. However, the intervenor's claim for the confirmation of ownership to the plaintiff and the defendant cannot be dismissed as it is unlawful because it is impossible to establish the claim for the confirmation of ownership to the plaintiff and the defendant.

Article 72 of the Civil Procedure Act, Article 186 of the Civil Act

Kim Dong-hee

Long-term houses

Maximum formula

Seoul High Court Decision 64Na825, 826, 65Na381 decided March 4, 1965

1. The defendant's appeal is dismissed.

2. The part against the counterclaim defendant among the parts on the counterclaim from among the original judgment, shall be reversed, and the judgment of the first instance shall be revoked, and the counterclaim against such part shall be dismissed; and

3. The costs of the lawsuit incurred by the Defendant’s appeal shall be borne by the Defendant, and the total costs of the lawsuit regarding the counterclaim shall be borne by the Plaintiff and the counterclaim Defendant respectively.

1. We examine the Defendant’s grounds of appeal.

After comparing the original judgment with the record, the original judgment cannot be deemed to have been erroneous in failing to obtain each testimony for the objection to the examination of the theory of lawsuit, and there is no other ground to find that it was unlawful in the deliberation of evidence or the fact-finding in the original judgment. Therefore, there is no reason to criticize the legitimate measures of the original judgment on the premise of the independent decision on the circumstances in which evidence exists.

2. The counterclaim is a matter of ex officio investigation prior to examining the grounds of appeal by the counterclaim Defendant (party intervenor). Thus, this case’s counterclaim is lawful.

According to the records, a party intervenor (sub-party defendant) asserted as the reason for participation and the reason for claim. The plaintiff's ownership is the plaintiff's own ownership, and the plaintiff filed a claim for the name of the house against the defendant. However, the original house and its site are the plaintiff's ownership, which were sold to the non-party Kim Jong-k, the plaintiff's husband's husband's price in 1962.11.6, but were sold to the plaintiff's non-party Kim Jong-k, but the plaintiff's transfer registration was extinguished. Thus, the plaintiff's claim as to the purport of the claim is to confirm whether the plaintiff is the intervenor's ownership of the cancellation of the transfer registration and to request the defendant to confirm that the house is the part of the plaintiff

However, in order to participate in an independent party under Article 72 of the Civil Procedure Act, the intervenor must make his own claim against the original defendant, which is incompatible with the claim of the principal lawsuit. According to the intervenor's argument as seen above, since the intervenor sought the cancellation of the ownership transfer registration of the plaintiff's title on the ground of the rescission of the contract, it is clear that the title of the registration of the house in question is not recovered by the intervenor, and therefore, the acquisition of a real right due to a juristic act on real estate under the new Civil Act becomes effective by the registration. Thus, the intervenor's ownership of the house in question

Therefore, it is clear that the part of the intervenor's request for confirmation of ownership transfer registration against the original defendant is without merit, and therefore, the intervenor's claim can only be established with the part seeking cancellation of ownership transfer registration against the plaintiff. Therefore, the intervenor's request for counterclaim against the intervenor which can be established only on the premise that the application for intervention in this case is legitimate cannot be deemed unlawful, and therefore, it is not possible to avoid the plaintiff's counterclaim against the intervenor which can be established only on the premise that the application for intervention in this case is legitimate.

However, the court of first instance concluded the above main office and concluded the counterclaim against the intervenor and the plaintiff as legitimate, and dismissed the intervenor's claim, and dismissed only 30,000 won claim against the counterclaim defendant as to the plaintiff's counterclaim. However, since the counterclaim defendant did not appeal against this judgment and only the counterclaim plaintiff did not appeal against the part against it, the court below accepted the plaintiff's claim against the plaintiff, as seen above, the court below erred in the misapprehension of law as to the plaintiff's claim against the plaintiff against this part and affected the judgment.

Therefore, the defendant's appeal is dismissed without merit, and the part of the counterclaiming defendant's appeal against the counterclaiming defendant shall be dismissed, and the judgment of the court of first instance shall be revoked, and the counterclaiming claim for the part shall be dismissed, and the costs of the lawsuit shall be assessed as per Disposition by the assent of all participating judges pursuant to Articles 95, 89, and 96 of the Civil Procedure Act, which are the part against the counterclaiming defendant, from December 27, 1962, which is the part against the counterclaiming defendant, to pay a sum of KRW 30 per day to the time when the order of this building is completed.

Justices of the Supreme Court Dog-gu (Presiding Judge) Dog-Jak and Mag-gu Mag-gu