Where a donee has completed the registration of transfer of ownership on the subject real estate after the donor died in accordance with the documents provided before the donor was born, whether the performance of the contract is terminated (affirmative)

Article 555 of the Civil Act provides, “Where the intention of donation is not indicated in writing, any party may rescind it.” Article 558 of the Civil Act provides, “The rescission of a contract under the preceding three Articles shall not affect any part already performed.” Thus, even if the intention of donation was not indicated in writing, if the donor donated real estate before birth and offered documents necessary for the registration of transfer of ownership pursuant to the purport of the donor, the donor would have completed ownership transfer registration as a performance of the donor’s intention even if the registration was completed after the donor died. Thus, the donation was already implemented, and thus, the donor’s heir’s rescission of the donation contract on the ground that it was a donation not in writing.

Articles 54, 555, and 558 of the Civil Act

Supreme Court Decision 80Da2338 delivered on July 28, 1981 (Gong1981, 14251) Supreme Court Decision 90Da6729 Delivered on August 13, 1991 (Gong1991, 2324) Supreme Court Decision 91Da6160 Delivered on September 10, 1991 (Gong1991, 2505) Supreme Court Decision 92Da18481 Delivered on March 9, 1993 (Gong193, 1143), Supreme Court Decision 200Da32192 Delivered on September 8, 2000

Plaintiff 1 and 5 others (Attorney Kim Dong-young, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Young-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2000Na64580 delivered on April 25, 2001

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below held that the registration of transfer of ownership in the name of the defendant of this case was made by the application of the deceased's name after the deceased non-party, who is the registered titleholder, died, and thus, the registration of transfer of ownership in the name of the defendant of this case was made by the application of the deceased's name, and recognized the facts of the judgment as to the defendant's defense that the above registration of transfer of ownership is in conformity with the substantive legal relationship. According to the facts of recognition, the deceased was willing to donate the real estate of this case to the defendant, who had lived with him for twenty (20) years since his disease aggravated, and had prepared for the transfer registration to the defendant by obtaining a certificate of the seal imprint, etc., but the deceased did not have any valid reason, since he did not have any objection to the procedure of registration in the name of the deceased, since he did not know that the death was caused on October 13, 199 and the registration of transfer of ownership in the name of the defendant was made.

In light of relevant evidence and records, the recognition and judgment of the court below is just, and there is no violation of law such as misconception of facts due to violation of the rules of evidence or violation of the law as pointed out in the grounds for appeal. This part of the grounds for appeal cannot

2. Article 555 of the Civil Act provides that "if the intention of donation is not expressed in writing, each party may rescind it." Article 558 of the Civil Act provides that "the cancellation of a contract under the preceding three Articles shall not affect the part already performed," and Article 558 of the Civil Act provides that "if the deceased has donated real estate before his/her birth and provided documents necessary for the registration of transfer of ownership pursuant to his/her purport, even though his/her intention of donation was not expressed in writing, if the deceased had already been registered after his/her death, the registration of transfer of ownership was made as a performance of donation according to the deceased's will, even if the deceased had already been made, and thus, the donation has already been performed, and thus, even if the deceased's heir rescinded the donation contract on the ground that it was a donation not in writing (see Supreme Court Decision 80Da2338, Jul

As seen above, according to the facts duly confirmed by the court below, the deceased donated the real estate of this case to the defendant before his birth and completed the registration of transfer of ownership by providing the seal imprint certificate and seal imprint certificate necessary for the registration of transfer of ownership. In light of the above legal principles, even if the deceased's heir cancelled the donation contract of this case on the ground that the donation was not made in writing, the validity of the transfer of ownership registration already made due to the execution of the donation does not affect. Therefore, the court below's rejection of the plaintiffs' defense that the deceased and the defendant cancelled the donation contract pursuant to Article 555 of the Civil Act on the ground that the donation contract between the deceased and the defendant was not made in writing, is justified, and there is no error of law such as misunderstanding of facts due to the violation of the rules of evidence or misunderstanding of legal principles as pointed out in the Grounds for Appeal. This part of the grounds for appeal cannot be accepted.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)