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(영문) 서울남부지방법원 2017.06.22 2016재가합72
소유권이전등기
Text

1. All of the lawsuits filed by the Defendant (Quasi-Review Plaintiff) shall be dismissed;

2. The costs of quasi-examination shall be considered.

Reasons

1. Final decision subject to quasi-examination;

A. On January 26, 2015, the Plaintiff filed a lawsuit against the Deceased on the same purport as the written claim for ownership transfer registration under Seoul Southern District Court 2015Gahap848.

B. On June 1, 2015, the court of first instance rendered a ruling of recommending reconciliation, which is the subject of quasi-examination of this case, as stated in the purport of the claim, and the said ruling became final and conclusive on June 23, 2015.

C. The Deceased died on March 10, 2016, and the Defendant (the quasi-Review Plaintiff; hereinafter “Defendant”) succeeded to the Deceased.

[Ground of recognition] Facts without dispute, entry of evidence Nos. 1, 2, 6, and 7, substantial facts in this court and the purport of the whole pleadings

2. Determination on the grounds for quasi-examination under Articles 461 and 451(1)3 of the Civil Procedure Act

A. At the time of June 8, 2015, the Deceased was in the absence of litigation capacity due to dementia, which was served on the Deceased on the summary of the Defendants’ assertion, and thus, procedural acts, such as the service of the decision on quasi-examination, are null and void.

Therefore, there are grounds for quasi-examination under Article 461 and Article 451 (1) 3 of the Civil Procedure Act in the decision subject to quasi-examination.

B. If, as alleged by the Defendants, the deceased did not have a litigation capacity due to dementia at the time when he was served with the decision subject to quasi-examination, the service of the decision subject to quasi-examination on the deceased, who is an incompetent person, is null and void, so the decision subject to quasi-examination is not yet finalized.

Thus, the lawsuit of quasi-examination of this case is not illegal as against the decision of recommending reconciliation which is not finalized.

(see, e.g., Supreme Court Decisions 80Da1132, Jul. 8, 1980; 2016Da35123, Dec. 27, 2016). Ultimately, among the Defendants’ respective applications for quasi-examination, the part concerning quasi-examination prescribed in Articles 461 and 451(1)3 of the Civil Procedure Act, is unlawful by itself as to the assertion.

On the other hand, each statement of Eul Nos. 13 through 14, 16, and the Korean Medical Association.

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