Whether a special representative for a minor shall be appointed in cases where an act conflicts with interest between the enemy mother and the minor or between a guardian and the ward (a minor) under the former Civil Act (amended by Act No. 4199, Jan. 13, 1990).

In doing an act of conflicting interest between the enemy mother and the minor under the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990), or between a guardian and the ward (a minor), Article 921 of the Civil Act shall apply mutatis mutandis to the act of conflicting interest between the person with parental authority and the minor, and a special representative shall be appointed for the minor as well as for the act of conflict

Article 921 of the Civil Act; Article 912 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990); Article 2(1)(b)11 of the Family Litigation Act

Plaintiff 1 and two others

Defendant 1 and 10 others

Cheongju Law (Law No. 91 delivered on May 7, 1993)

1. All appeals filed by the plaintiffs are dismissed.

2. The appeal costs are assessed against the plaintiffs.

The judgment of the first instance shall be revoked.

원고들에게, 각 4/37에 관하여 1) 피고 2는 별지 제1목록 기재 각 부동산에 관하여 청주지방법원 1989.6.30. 접수 제46063호로 마친 각 소유권이전등기의, 2) 피고 1은 별지 제2목록 기재 각 부동산에 관하여 같은 법원 1989.6.30. 접수 제46064호로 마친 각 소유권이전등기 의, 3) 피고 3은 별지 제3목록 기재 각 부동산에 관하여 같은 법원 1989.6.30. 접수 제46065호로 마친 각 소유권이전등기의, 4) 피고 4는 별지 제4목록 기재 각 부동산에 관하여 같은 법원 1989.6.30. 접수 제46068호로 마친 각 소유권이전등기의, 5) 별지 제5목록 기재 각 부동산 중 제1기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 5는 같은 법원 1989.11.24. 접수 제80597호로 마친 소유권이전등기의, 6) 별지 제5목록 기재 각 부동산 중 제2기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 5는 같은 법원 1990.4.30. 접수 제37334호로 마친 소유권이전등기의, 7) 별지 제6목록 기재 각 부동산 중 제1기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 6은 같은 법원 1989.11.24. 접수 제80600호로 마친 소유권이전등기의, 8) 별지 제6목록 기재 각 부동산 중 제2기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 6은 같은 법원 1990.4.30. 접수(청구취지변경서 기재 1989.4.30. 접수는 오기로 보임) 제37331호로 마친 소유권이전등기의, 9) 별지 제7목록 기재 각 부동산 중 제1기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 7은 같은 법원 1990.4.30. 접수(청구취지변경서 기재 1989.4.30. 접수는 오기로 보임) 제37332호로 마친 소유권이전등기의, 10) 별지 제7목록 기재 각 부동산 중 제2기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 5는 같은 법원 1989.11.24. 접수 제80596호로 마친 소유권이전등기의, 11) 별지 제8목록 기재 각 부동산 중 제1기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 8은 같은 법원 1989.11.24. 접수 제80599호로 마친 소유권이전등기의, 12) 별지 제8목록 기재 각 부동산 중 제2기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 8은 같은 법원 1990.4.30. 접수 제37335호로 마친 소유권이전등기의, 13) 별지 제9목록 기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나) 피고 9는 같은 법원 1989.11.24. 접수 제80598호로 마친 소유권이전등기의, 14) 별지 제10목록 기재 각 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기의, 나)학교법인 청석학원 (등기부상 명칭으로는 학교법인 대성학원)은 같은 법원 1990.10.27. 접수 제83949호로 마친 소유권이전등기의, 15) 별지 제11목록 기재 부동산에 관하여, 가) 피고 2는 같은 법원 1989.6.30. 접수 제46063호로 마친 소유권이전등기 의, 나) 피고 (본관 및 성 생략)씨 충청북도 청주청원지부는 같은 법원 1990.5.25. 접수 제44700호로 마친 소유권이전등기의, 16) 피고 2, 3은 별지 제12목록 기재 부동산에 대한 각 1/2지분에 관하여 같은 법원1989.6.30. 접수 제46069호로 마친 소유권이전등기의 각 말소등기절차를 이행하라.

1. Basic facts (registration relations and status relationships);

A. Each real estate listed in the separate sheet was owned by the original deceased Nonparty.

B. On November 22, 198, the Nonparty, as his property heir, died with Defendant 2, Defendant 3, the South-North Korean, Defendant 4, the married couple, and Nonparty 1, who were born out of the marriage in the actual marital relationship with Defendant 1 and his wife, and Nonparty 3 and 4, the born out of the marriage in the actual marital relationship with Nonparty 2.

(Legal Shares in Inheritance: Defendant 1, 2, Defendant 3, Plaintiff 1, 2, 3, Nonparty 4, Nonparty 3, and Plaintiff 41/37, respectively)

B. However, the above property inheritors did not inherit the above inherited property by the above statutory share of inheritance, and decided to inherit it by the method of consultation and division, and as to the plaintiff 2, 3, 4, and 3 who had been a minor at the time, Defendant 1, the legal representative of the person with parental authority, applied for the appointment of a special representative for the above minor on the ground that the above consultation division constituted an act of conflict between the minor and himself, the court appointed the non-party 5 as the special representative of the above minor on June 20, 1989.

C. Accordingly, the plaintiff 3, 2, 4, and 3, who are the non-party 5 and the remaining property successors, agreed on the division of the inherited property of the non-party of the above deceased on June 22, 1989. As a result, the plaintiff 1, 2, 2, and 3 agreed on the division of the inherited property of the non-party of the above deceased, the land of five parcels, including 500 square meters in Cheongju-si, 710-222, 710-22, among the inherited property of the above deceased, and the above above above ground buildings are the plaintiff 1, and the land of 4,959 square meters in 4,00 m2,371,50 m2,374 m2,50 m2, 371, 504 m2, 374 m2, 14, 39 m2, 39 m2, 31 or 4 of each real property.

D. After that, in accordance with the registration of the above inheritance, the registration of ownership transfer was completed, as described in the future claims of the Cheongbuk-do Office for Cheongbuk-do, Cheongbuk-do, in relation to some of the real estate listed in the separate sheet, as stated in Defendant 5, 6, 7, 8, and 9, and the school foundation Cheongbuk-do Office for Cheongbuk-do.

【Premium】

The facts without dispute, Gap evidence 1-1 through 43, Gap evidence 3, 4, Eul evidence 1-2, Eul evidence 3-2, Eul evidence 3-1, Eul evidence 4-1, Eul evidence 5-1 through 7, non-party 2, non-party 3, non-party 4, and the whole purport of oral argument

【Evidence Evidence】

Part of the testimony of the first instance court witness Kim Jong-hwan, non-party 1

2. Summary of the plaintiffs' assertion

A. At the time of division of inherited property as above, Defendant 1, who is a person with parental authority, exercised parental authority over the same person, including the right of representation, with respect to each minor including Plaintiff 2 and 3 at the time of division of inherited property, but the above defendant merely has the right of representation, and in such a case, the provisions on guardians under Article 912 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 19

B. Meanwhile, the agreement division of inherited property constitutes an act aimed at acquisition, loss, and acquisition of the right to real estate under Article 950(1)3 of the Civil Act.

C. Accordingly, at the time of the above consultation and division, Defendant 1, who is a person with parental authority, should have obtained the consent of the family council, on behalf of the Plaintiff 2 and 3.

D. Nevertheless, without going through these procedures, the special representative was appointed and the representative took part in the consultation and division of the inherited property on behalf of the above plaintiffs without authority.

E. Unless otherwise, even if the above consultation is divided, since the above consultation acts between the plaintiff 3, 2 and the defendant 1, the above special representative appointment is valid only in the consultation and division relation between them, and between the plaintiff 3, 2, and the remaining children of the defendant 2, 3, and 4, who are minors, as defendant 1, the defendant 1 did not correspond to this act and unrelated to his interest. Thus, the special representative appointment is not necessary, and the defendant 1 should have participated in the consultation division on behalf of the above minors with the consent of the family council, but the special representative was also represented by the non-party 5.

F. If so, the division of the above inherited property is null and void, and if it is an act of revocation, not null and void, it would be possible to cancel the agreement on division of inherited property of the above plaintiffs through the delivery of the complaint in this case pursuant to Article 950 (2) of the same Act.

G. Accordingly, each transfer registration of ownership in the names of the remaining Defendants, which was made based on Defendant 1, 2, 3, and 4 stated in the purport of the claim based on the consultation on the above share of inheritance, should be cancelled as a result of the invalidation of the cause within the limit of 4/37, which is the legitimate share of inheritance of the Plaintiffs.

3. Determination

A. The plaintiffs' assertion that the provision on guardian should be applied mutatis mutandis pursuant to Article 912 of the former Civil Act (amended by Act No. 4199 of Jan. 13, 1990) in a case where the enemy-child must act on behalf of a minor who is not his own father's child, etc.

B. However, in the above cases, even if the guardian's provision is applied, if the enemy or the guardian, such as the division of inherited property in this case, commits an act that conflict with one another between the minor and the ward, it shall be deemed that Article 921 of the Civil Act shall apply mutatis mutandis to the case between the person with parental authority and his/her son, and a special representative shall be appointed for the minor or ward

This is because the special representative system under Article 921 of the Civil Code is not easy to expect a fair exercise of parental authority in the case of a juristic act that is linked with interests between a person with parental authority and a minor, and such circumstance is the same as in the case of a conflict of interests between a minor, etc., his or her guardian, his or her mother, and his or her mother. As such, the appointment of a special representative can be easily known as a third party, so it is less likely to undermine the stability of trade, and there is a very large scale to protect the minor (in addition, the grounds for analogical application as mentioned above are stipulated in Article 2 (1) (b) (11) of the Family Litigation Act, a procedural act enacted on December 31, 190, Article 2 (1) (b) of the Family Litigation Act (Act No. 4300), which is enacted on December 31, 190).

Therefore, the above part of the plaintiffs' assertion on the premise that Article 921 of the Civil Code does not apply to the act of interest conflict between the guardian and the ward is without merit.

C. Furthermore, as alleged in the plaintiffs, the agreement on the division of inherited property shall be divided into two parts: (a) the person with parental authority and the person with parental authority and the person with parental authority, and (b) the latter shall appoint a special representative in the case of the latter; (c) the agreement on the division of inherited property shall be a single act, and shall be divided by all co-inheritors, and shall not be in the nature that can be divided by one of the parties as alleged in the plaintiffs, but in the case of a relationship between a person with parental authority and a minor, if there is a relationship between a person with parental authority and a minor, it shall be necessary to appoint a special representative for the minor as a whole and to participate in the division of consultation. Therefore, the plaintiffs' assertion on

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiffs' appeal against this is dismissed as it is without merit.

Judges Kim Tae (Presiding Judge)