[1] In a case where it is not recognized that there is a title to claim cancellation of registration against the Plaintiff, the validity of the claim for cancellation registration against the holder of the invalid registration (negative)

[2] The validity of disposition on the basic property of a public-service corporation without permission from the competent authority (i.e., invalid) and the method of interpretation where additional clauses are attached to the permission of disposition on the basic

[3] The case affirming the judgment of the court below that where the competent authority specified the amount, payment method, payment period, etc. of the purchase price as a valid condition for the disposition of basic property of a public-service corporation, it shall be deemed as an additional part of the conditional nature, not a simple provision, and thus the above disposition permission shall become null and void unless it takes place

[4] Whether the validity of the permission to dispose of property of a public-service corporation is maintained where rights are transferred following the disposal of basic property

[5] The case holding that the above disposition permission is invalidated where the conditions of permission of the competent authority on the disposition of basic property of a public-service corporation are not fulfilled and the parties did not obtain the permission of the competent supervisory authority on the modified matters although they concluded an agreement different from the original conditions of permission

[6] The case reversing the judgment of the court below and rejecting the lawsuit, where the registration of ownership transfer was already cancelled on the grounds of different grounds while the lawsuit seeking the cancellation of the registration of ownership transfer was pending for the purpose of seeking the cancellation of the registration of ownership transfer

[1] In order for the Plaintiff to seek the cancellation of the ownership transfer registration completed in the name of the Defendants as part of the exercise of the right to claim the removal of an infringement of real rights based on the ownership of real estate, the Plaintiff must actively assert and prove that the Plaintiff has the right to claim the cancellation of the ownership transfer registration. If it is not recognized that the Plaintiff has such right, the Plaintiff’s claim may not be accepted even if the registration of invalidation is to be cancelled, and this legal principle is based on the premise that the registration of ownership transfer under the name of the Defendants was completed before the registration of ownership transfer under the name of the Plaintiff, and is based on the premise that the registration of ownership transfer under the name of the Plaintiff was valid, and it is not different.

[2] The provision of Article 11 (3) of the Act on the Establishment and Operation of Public Interest Corporations concerning the Disposal of Fundamental Property of Public Interest Corporations is a mandatory provision, and it is null and void to dispose of fundamental property without obtaining permission from the competent authority in violation of this provision. In a case where additional clauses are attached to the above disposition permission, the imposition of additional clauses cannot be deemed as not permitted on the ground that the legal nature of the disposition permission constitutes a formative administrative act, and it constitutes a formative administrative act. However, in a specific case, whether it constitutes a type of additional clauses among the reservation of the right to withdrawal shall be determined by taking into account the contents, circumstances, and all other relevant circumstances

[3] The case affirming the judgment of the court below that where the competent authority specified the amount, payment method, payment period, etc. of the purchase price as a valid condition for the disposition of basic property of a public-service corporation, it shall be deemed as an additional part of the conditional nature, not a simple provision, and thus, the above disposition permission shall lose its validity unless it takes place.

[4] A supervisory authority's permission to dispose of the basic property of a public-service corporation is an act that is not a permission to dispose of the basic property for a specific party in its nature, but a disposition is valid as a supplement of the disposition, regardless of the other party to the disposition. Therefore, even if a right is transferred following the disposition, the permission shall continue to remain effective until

[5] The case holding that the permission for disposal of basic property of a public-service corporation is invalidated, where the conditions of permission for disposal are not fulfilled by the competent authority and the parties did not obtain the permission for the alteration despite the agreement with the competent authority on the disposal of basic property of the public-service corporation.

[6] The case reversing the judgment of the court below and rejecting the lawsuit, where the registration of ownership transfer was already cancelled on the grounds of different grounds while the lawsuit seeking the cancellation of the registration of ownership transfer was pending, notwithstanding the absence of legal interest to seek cancellation,

[1] Articles 186 and 214 of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 11(3) of the Act on the Establishment and Operation of Public Interest Corporations, Article 1 of the Administrative Litigation Act / [3] Article 1 of the Administrative Litigation Act / [4] Article 1 of the Administrative Litigation Act / [5] Article 1 of the Administrative Litigation Act / [6] Article 248 of the Civil Procedure Act

[1] Supreme Court Decision 98Da17831 decided Feb. 26, 1999 (Gong1999Sang, 1248), Supreme Court Decision 90Da1097 decided May 8, 199 (Gong199Sang, 607) / [2] Supreme Court Decision 84Ma591 decided Dec. 1, 1984 (Gong1985, 348), Supreme Court Decision 97Da970 decided Dec. 11, 1998 (Gong199Sang, 111) / [4] Supreme Court Decision 66Da2442 decided Feb. 28, 197 (No house15-1, 147) / [5] Supreme Court Decision 86Da2979 decided Jul. 24, 1968 (No. 2979Da27979 decided Jul. 24, 1968)

Plaintiff (Law Firm Barun, Attorneys Jeong Ho-ho et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Sung Branch, Attorneys Lee Jong-bong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na65331 delivered on August 25, 2004

The Plaintiff’s appeal against Defendant 1, Defendant 2, and Defendant 3 is dismissed. Of the judgment of the court below, the part against the Defendant Ansan City is reversed, and this part of the judgment of the court of first instance is revoked, and the lawsuit against the said Defendant is dismissed. The costs of appeal between the Plaintiff, Defendant 1, Defendant 2, and Defendant 3 and the total costs of lawsuit between the Plaintiff and the Defendant Ansan

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the expiration of the submission period).

1. Grounds of appeal against Defendant 1, Defendant 2, and Defendant 3

A. Regarding ground of appeal No. 1

In order for the Plaintiff to seek cancellation of the ownership transfer registration completed under the name of Defendant 1, Defendant 2, and Defendant 3 (hereinafter “Defendants”), as part of the exercise of the claim for removal of infringement of real rights based on the ownership of the instant real estate, the Plaintiff’s claim may not be accepted even if the ownership transfer registration under the name of the Defendants is invalid, unless it is acknowledged that the Plaintiff has such title (see Supreme Court Decision 98Da17831, Feb. 26, 1999, etc.). Such legal principle is a case where the ownership transfer registration under the name of the Defendants was completed before the ownership transfer registration under the name of the Plaintiff, and can be asserted its validity only on the premise that the ownership transfer registration under the name of the Plaintiff was valid, and it is not different. In the same purport, the lower court’s rejection of the Plaintiff’s claim based on the misapprehension of legal principles as to the ownership transfer registration under the name of the Plaintiff, as alleged in the ground of appeal by the Defendants, is justifiable and acceptable.

B. Regarding ground of appeal No. 2

(1) Article 11(3) of the Act on the Establishment and Operation of Public Interest Corporations concerning the Disposal of Fundamental Property of Public Interest Corporations is a mandatory provision and thus the disposal of fundamental property without obtaining permission from the competent authority is null and void (see Supreme Court Decision 97Da970, Dec. 11, 1998, etc.). In a case where additional clauses are attached to the above disposal permission, the imposition of additional clauses may not be permitted on the condition that the legal nature of the disposal permission constitutes a formative administrative act. However, in specific cases, whether it constitutes a type of additional clauses in the reservation of the right to withdrawal shall be determined by taking into account the contents, circumstances, and all other circumstances of the pertinent additional clauses.

In full view of the adopted evidence, the court below determined that the competent authority of the Foundation of this case permitted the disposal of each of the real estate in its judgment, including the first real estate of this case, which is the basic property of the Foundation, to sell basic property within six months and to secure the sale price in cash at least 3,189,475,200 won, etc. within the period of validity of the permission. According to the records, the above disposal permission and the notice of disposal permission issued on May 16, 1997, clearly indicate that the conditions of permission are the conditions of permission for each of the above disposal permission, such as the above disposal permission and the notice of disposal permission issued on May 16, 1997, the contract documents according to the conditions of permission are subject to the conditions of permission, and there is no illegality in the decision of the court below that the above disposal permission's payment method, payment method, etc. specified in the above disposal permission for the purpose of financial stability of the Foundation where the above disposal permission is in distress. Thus, it is not justified in the ground of appeal.

(2) The supervisory authority's permission to dispose of the basic property of a public-service corporation is not a permission to dispose of the basic property for a specific party, and it is an act that supplements the disposition to the other party, regardless of its nature. Thus, even if the right is transferred following the disposal, the permission shall continue to have its validity until the disposal is completed completely (see Supreme Court Decision 66Da2442 delivered on February 28, 1967, etc.). Thus, the above 00 ○○○○'s purchaser status based on the permission to dispose of the real property of this case shall be viewed as an assertion in the grounds of appeal that the competent authority's permission to dispose of the basic property of this case does not need to obtain it again, but the implementation of the measures such as the amount of the purchase price, payment method, payment deadline, etc. accompanied by the permission to dispose of this case shall be deemed as valid condition. Nevertheless, the plaintiff and the foundation did not perform it, and it is not sufficient to conclude that it concluded an initial agreement with the original permission to dispose of the changed matters, as well as the payment method and payment deadline, etc.

(3) Furthermore, in light of the principle that administrative act is explicitly conducted, it may be deemed that the supervisory office of the permission of disposition of this case has extended the term of validity of the permission of disposition to fulfill the above conditions of permission until March 31, 1998. However, the Foundation has urged the Foundation to submit a plan for normalization of the foundation and pay the term of payment. At the request of the Foundation, delivery of each official document as of July 30, 1998 and July 31, 1998, in the above public notice, stated that "in relation to the disposal of basic property, it should be implemented in accordance with the permission of disposal of basic property as of May 2, 1997." However, it is not reasonable to deem that the original conditions of permission of the Foundation have already been requested to normalize and the conditions of permission can be confirmed if the conditions of permission are fulfilled, and there is no error in the misapprehension of the original conditions of permission or public inspection as to the Foundation's internal violation of the terms of permission as stated in the above public notice.

2. As to the ground of appeal against the defendant Ansan City

In a lawsuit seeking the cancellation of ownership transfer registration, there is no legal interest to seek cancellation if the ownership transfer registration is already cancelled for any other reason, and according to the records, it is recognized that the registration of seizure on May 29, 2001, among the real estate No. 1 in the name of the defendant Ansan-si, the plaintiff seeking the cancellation of the lawsuit in this case, was cancelled for the reason that it was in full payment by the defendant 2 on May 24, 2004. Thus, the court below should have dismissed the lawsuit in this case against the defendant Ansan-si, since there was no legal interest to seek cancellation, and it was unlawful for the court below to have deliberated and decided on the part of the lawsuit in this case as it was unlawful because there was no legal interest to seek cancellation. Thus, the court below erred in the misapprehension of legal principles as to the interest in the lawsuit, without omitting the judgment on the grounds of appeal against the above defendant, and this court must reverse this part of the judgment of the first instance court and dismiss the lawsuit against the above defendant.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant Ansan-si is reversed, and this part of the judgment of the court of first instance is revoked, and the lawsuit against the above defendant is dismissed. The appeal against the remaining defendants is dismissed. All of the costs of appeal and the total costs of lawsuit are assessed against the plaintiff. It is so decided as per Disposition by the assent

Justices Park Jae- Jae (Presiding Justice)