In a lawsuit concerning the inherited property, the existence of which is unclear, the eligibility for defendant (=the administrator of inherited property)

Article 1053 of the Civil Act, Article 92 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant 1 and 12 others

An intervenor;

Seoul Northern District Court Decision 2004Na3411 Decided September 7, 2005

The part of the judgment of the court below against the remaining Defendants except the Defendant Republic of Korea is reversed, and the judgment of the court of first instance falling under this part is revoked, and this part of the lawsuit is dismissed. The appeal against the Defendant Republic of Korea is dismissed. The costs of appeal arising between the Plaintiff and the remaining Defendants except the Defendant Republic of Korea are assessed against the Plaintiff.

1. It shall be deemed ex officio;

In a lawsuit concerning any inherited property, the existence of which is unclear, the legitimate defendant is an administrator of inherited property appointed by a court (see Supreme Court Decision 76Da797 delivered on December 28, 1976).

However, according to the records, the supplementary intervenor (hereinafter “the supplementary intervenor”) filed an application for the appointment of an administrator of inherited property on September 1998 for the reason that it is not clear whether the heir exists of the deceased non-party (hereinafter “the deceased”), the Seoul Family Court (Seoul Family Court 98Do8714) as an interested party, and the above court decided on June 16, 199 to appoint an administrator of inherited property as an administrator of inherited property of the deceased, and announced it in the Official Gazette on August 27 of the same year. Thus, in this case where the plaintiff filed a claim for ownership transfer registration of the apartment of this case, which is the inherited property of the deceased, only the administrator of inherited property of the deceased, is qualified for the defendant.

Therefore, the part of the judgment of the court below which the remaining Defendants except the defendant Republic of Korea asserted as the inheritor of the deceased and claimed for ownership transfer registration of the apartment of this case should be dismissed as a lawsuit against the non-party standing. However, the court below erred in the misapprehension of legal principles as to the standing in the lawsuit concerning inherited property, and it clearly affected the conclusion of the judgment. Thus, this part of the judgment of the court below cannot be maintained.

2. We examine the grounds of appeal against Defendant Korea.

According to the records, the plaintiff asserts that it constitutes an interested party to whom ownership is transferred from the deceased according to a transfer for security agreement, and directly against the defendant Republic of Korea, the plaintiff is seeking to cancel the additional registration of prohibited matters under the Act on the Registration of Establishment of Mortgage in the name of the defendant and the Honorable Treatment and Support of Persons, etc. of Distinguished Services to the State, after receiving the repayment of the secured obligation under

However, even though the Plaintiff is a person who has a legitimate interest in repaying the secured debt under the name of the Defendant Republic of Korea with respect to the instant apartment, he/she cannot seek a cancellation registration procedure against the Defendant Republic of Korea directly without subrogation from the deceased or his/her inheritors.

Therefore, the court below's dismissal of the plaintiff's claim against the defendant Republic of Korea is justified as a result, and the judgment of the court below is not unlawful.

3. Conclusion

Therefore, among the judgment below, the part of the claim for ownership transfer registration against the remaining defendants except the defendant Republic of Korea is reversed, but it is sufficient to judge the remaining grounds of appeal by the Supreme Court. As such, the decision of the court of first instance falling under this part is revoked and this part of the lawsuit is dismissed. The plaintiff's appeal against the defendant Republic of Korea is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)