Plaintiff 1

Plaintiff 2 (Attorney Choi Woo-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm East, Attorneys Lee Jae-ro, Counsel for defendant-appellant)

May 3, 2013

Busan District Court Decision 201Da13254 Decided August 16, 2012

1. The judgment of the first instance court against the defendant, including the plaintiffs' claims added in the trial, shall be modified as follows:

A. The plaintiff 1's claim against the defendant is dismissed.

B. The Defendant shall implement the procedure for the cancellation registration of each transfer of ownership, which was completed by the Changwon District Court No. 62325, Oct. 6, 2010, with respect to each real estate listed in paragraphs (1) and (2) of the attached Table 1 to co-defendant 1 of the first instance trial (Nonindicted 2 of the Supreme Court judgment).

C. The defendant shall deliver each of the buildings listed in the separate sheet No. 3 to Plaintiff 2.

2. The total cost of the lawsuit between the plaintiff 1 and the defendant is assessed against the plaintiff 1, and the total cost of the lawsuit between the plaintiff 2 and the defendant respectively.

3. The 1-C. A provisional execution may be effected.

1. Purport of the claim by the primary plaintiff 1 (hereinafter referred to as "Plaintiff 1").

The defendant implements the procedure for the cancellation registration of each transfer of ownership completed by the Changwon District Court No. 62325 on October 6, 2010 with respect to each real estate listed in paragraphs (1) and (2) of the attached Table 1 to co-defendant 1 of the first instance trial, and delivers each of the buildings listed in paragraph (3) of the attached Table to the plaintiff 2 (the plaintiff 1 added the claim for delivery to the trial).

2. Claim of Plaintiff 2 (hereinafter “Plaintiff 2”)

The text 1-B, c. (Plaintiff 2 added the claim for extradition to the trial).

The part of the judgment of the court of first instance against the defendant shall be revoked, and the claim against the plaintiff 1 against the defendant shall be dismissed.

1. Scope of the judgment of this court;

The plaintiff 1 and 2 filed a claim for the registration of ownership transfer against the co-defendant 1 of the first instance court, and the court of the first instance accepted all claims against the plaintiff 1, co-defendant 1 of the first instance court, and the defendant, and dismissed all the claims against the plaintiff 2, co-defendant 1 of the first instance court, and the defendant. Accordingly, in principle, the right of the plaintiff 1's claim against the defendant is only subject to the judgment of the court. However, in the case of the plaintiff's preliminary co-litigation as in this case, in order to avoid inconsistency between co-litigants, the legal relationship that cannot be legally compatible with the judgment of all co-litigants should be examined as a single judgment (refer to Article 70 (2) of the Civil Procedure Act). Accordingly, if an appeal is filed against the plaintiff 1 of the first instance court, the remaining co-litigants are not finalized, and this case is subject to the judgment of the appellate court. Thus, not only the plaintiff 1's claim against the defendant, but also the plaintiff 2 of the appellate court.

2. Basic facts

A. On December 20, 1997, Nonparty 1, the co-defendant 1, Nonparty 3, and 4 (the former name: ○○○; hereinafter “○○○”) and 5 inherited each 1/4 shares of the instant land, each of which was owned by the owner of each real estate listed in the separate sheet No. 1 and 2, each of which listed in the separate sheet No. 3, and each of which listed in the separate sheet No. 3 (hereinafter “instant building; hereinafter referred to as “instant real estate”). The deceased on December 20, 1997. Nonparty 1, the deceased non-party 1’s children, the deceased non-party 1, and the deceased non-party 1’s co-defendant 1, 3, and 4 (hereinafter “the former name: ○○; hereinafter “○○”) succeeded

B. On January 13, 1998, Co-Defendant 1 of the first instance trial entered into a sales contract with Plaintiff 2 on the instant land [the instant land (hereinafter “the instant first sales contract”) with Plaintiff 1 and Plaintiff 2, while part of the land was divided into 126 square meters in the front city’s front city’s front city’s front city’s front city’s front city’s front city’s front city’s front, it was divided into 27 square meters in the same Ri (number 2 omitted) around December 8, 2006. In the instant case, it was not divided after the division and transfer of the said land, but it was divided into 7 million won in the instant land (hereinafter “instant land”). Plaintiff 2 entered into a sales contract under the name of Plaintiff 1, which is the relation of bad credit standing, and prepared the instant sales contract under the name of Plaintiff 1 under the sales contract.

C. The co-defendant 1 of the first instance court concluded the above first sales contract and paid the above sales amount of KRW 1 million on the date of the contract, including the remainder of KRW 6 million on February 9, 1998, but did not transfer the registration of ownership transfer on the land of this case.

D. However, around September 16, 2010, Co-Defendant 1 of the first instance trial concluded a sales contract with the Defendant for the purchase price of KRW 14.5 million with respect to the instant land and building (hereinafter “instant second sales contract”). On December 20, 1997, Co-Defendant 1 of the first instance trial registered the transfer of ownership under the name of Co-Defendant 1 of the first instance trial on the ground of inheritance by agreement and division as of October 6, 2010, and on October 6, 2010, filed a registration for the transfer of ownership (hereinafter “registration under the Defendant’s name”) with the Defendant on the instant land.

【Ground of recognition】 The non-contentious facts, Gap evidence Nos. 1, 2, 5, 15 (including each number), witness of the first instance court, the testimony of ○○○○○○, the head of the Busan Regional Construction and Management of the court of first instance, and the fact-finding results to the head of the Chang-si, Chang-si, the purport of the first instance court's questioning results and the whole

3. Determination as to claim against the defendant

(a) Confirmation of parties to a contract;

The plaintiffs 1 and 2 asserted that they are buyers of the contract for the first sale of this case, and filed a claim of this case primarily and alternatively. As such, the plaintiffs first consider who is the party to the contract for the first sale of this case, and as to who is the actor or the title holder in the case where the actor and the other party agreed to do a legal act in the name of other party, the parties to the contract should first determine the actor or the title holder as the party to the contract as the party to the contract in accordance with the agreed intent if the intent of the actor and the other party were to be the parties to the contract. If the other party fail to agree with the intent of the actor and the other party, based on the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and circumstance of the contract, etc., if a reasonable person is the party to the contract, the parties shall be decided by whom the actor and the title holder should understand as the party to the contract

However, in this case, Plaintiff 2 entered into a sales contract of this case with Co-Defendant 1 of the first instance trial under the name of Plaintiff 1 as Plaintiff 1, and Co-Defendant 1 of the first instance trial did not know about whether Plaintiff 1 was named or not, and whether Plaintiff 1 and Plaintiff 2 were named or not. In fact, Plaintiff 2 was to purchase and reside in the land of this case and the building on its ground, and Co-Defendant 1 of the first instance trial was aware that Plaintiff 2 was to purchase the land of this case and the building of this case. In full view of these circumstances, there is no dispute between the parties, and in full view of these circumstances, Plaintiff 1 was the purchaser of the first sales contract of this case as Plaintiff 2, the actual actor.

Therefore, the plaintiff 2 has the right to claim the transfer registration of ownership of the land and building of this case against the co-defendant 1 of the first instance trial.

B. Determination as to the application for cancellation registration of ownership transfer

1) As to Plaintiff 1’s claim

As seen earlier, Plaintiff 1’s assertion premised on the fact that the party to the instant contract was the Plaintiff 2 is the party to the instant contract is without merit.

2) As to Plaintiff 2’s claim

A) In order for double selling to be null and void as a juristic act contrary to the social order, the transferee’s act of breach of trust is insufficient to recognize the transferor’s act of breach of trust. Furthermore, it is necessary to actively participate in the act of breach of trust, such as inducing, inducing, or cooperating with the transferor. In this case, the decision should be made by taking into account the reasonableness and specificity of the act of breach of trust and the formation process of the second transfer contract, background, relationship between the transferor and the second transferee (Supreme Court Decision 2009Da34481 Decided September 10, 2009).

B) In light of the following facts: (a) the Defendant: (b) was aware of the fact that the instant land was sold to Nonparty 2 by Nonparty 1 and Nonparty 2; (c) the first instance court witness’s testimony; (b) the first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s first instance court’s second instance court’s second instance court’s second instance court’s first instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s second instance court’s first instance court’s second instance court’s second instance court’s first instance court’s second instance court’s second instance court’s first instance court’s first instance court’s second judgment’s second judgment’s second judgment’s second instance court’s first instance court’s second instance court’s conclusion.

Therefore, the contract for the second sale of this case concluded by the defendant and the co-defendant 1 of the first instance court constitutes a juristic act contrary to social order and thus null and void in violation of Article 103 of the Civil Act. The plaintiff 2 seeks to cancel the registration of the transfer of ownership in the name of the defendant in subrogation of the co-defendant 1 in order to preserve the right to claim the transfer registration of ownership against the co-defendant 1 of the first instance court. Thus, the defendant is obliged to perform the procedure for the cancellation registration of the transfer of ownership in his name to

C. Determination as to the request for delivery of a building

1) As to Plaintiff 1’s claim

As seen earlier, Plaintiff 1’s assertion premised on the fact that the party to the instant contract was the Plaintiff 2 is the party to the instant contract is without merit.

2) As to Plaintiff 2’s claim

In full view of the facts that Plaintiff 2 purchased the building of this case unregistered from Co-Defendant 1 of the first instance trial, and the fact that the Defendant purchased the building of this case from Co-Defendant 1 of the first instance trial, as seen earlier, and the overall purport of the entries and arguments in the evidence Nos. 2 and 3 (including each number), the Defendant may recognize the fact that the Defendant, around October 2010, received the building of this case from Co-Defendant 1 of the first instance trial to clean up the closing party of the building of this case and its surroundings, etc., by managing and occupying the building of this case, and each image of the evidence No. 9 (including each number) does not interfere with the above recognition.

According to the above facts, the plaintiff 2 has the right to claim delivery of the building of this case against the co-defendant 1 of the court of first instance, and the defendant is obligated to deliver the building of this case to the co-defendant 1 of the court of first instance as the contract of second sale becomes null and void.

Therefore, in this case, the plaintiff 2 filed a claim on behalf of the co-defendant 1 in order to preserve the right to claim delivery of the building of this case against co-defendant 1 of the first instance trial, the defendant is obligated to deliver the building of this case to the plaintiff 2.

4. Judgment on the defendant's assertion

A. The defendant asserts that "the land and buildings of this case were co-defendant 1, 3, 00, 00, and 5, the deceased non-party 1's heir at the time of the conclusion of the first sale contract," but the first sale contract of this case was concluded between the plaintiff 2 and the co-defendant 1 of the court of first instance, and that the sale contract of this case is valid only within the scope of shares of co-defendant 1 of the court of first instance. Thus, the plaintiff 2's claim as to the remaining part except the shares of co-defendant 1 of the court of first instance is without merit."

However, in a case where an unentitled person disposes of another person’s right in his own name or as his own right, the holder of the right can approve the act of disposal by ratification on the later date. Barring any special circumstance, the effect of the act of disposal on the holder himself/herself takes effect in light of the principle of private autonomy. In this case, ratification may be possible not only explicitly but also implicitly, and such declaration of intent may only be made only on the part of the authorized representative or on the other party (see Supreme Court Decision 2001Da44291, Nov. 9, 2001).

However, in full view of the statements in Gap's evidence Nos. 3, 4, and 13 and the purport of testimony and arguments by the witness of the first instance court, 00 and 5, the co-defendant 1 and 00 of the first instance court, along with the co-defendant 1 of the first instance court, prepared and delivered "the receipt" to the plaintiff 2 on February 9, 1998, which was after the conclusion of the first instance court's contract, that he received 6 million won of the balance of the first instance contract. Further, the non-party 3 and 00 were transferred to the plaintiff 2 with the co-defendant 1 of the first instance court, and the non-party 5's inheritance authority is also liable for prior registration at the first instance court's co-defendant 1 of the first instance court's co-defendant 1 of this case's co-defendant 5's co-defendant 1 of this case's co-defendant 1 of this case's co-defendant 1 of this case's co-defendant 1 of this case's co-ownership.

Therefore, the defendant's above assertion is without merit.

B. In addition, the defendant, "the plaintiff 2's right to claim ownership transfer registration of the land and building in this case has expired by the prescription period." However, in a claim by the creditor against a third party by exercising the subrogation right, the third debtor cannot set up a defense against the creditor by the debtor, and in principle, the third debtor cannot set up a defense against the creditor, and the person who can invoke it in case the prescription period has expired is the person who directly receives the prescription benefit and the third debtor cannot exercise it (see Supreme Court Decision 97Da31472 delivered on December 8, 1998). Thus, the defendant's defense is without merit.

C. Finally, the Defendant alleged that “Plaintiff 1 and Plaintiff 2 entered into a title trust agreement, and that the title trust agreement would be null and void pursuant to the Registration of Real Estate under Actual Titleholder’s Name, and thus, Plaintiff 2, the title truster, has no authority to seek cancellation of the ownership transfer registration of the instant land against the Defendant.” However, the fact that the parties to the first sale contract of this case are Plaintiff 2 is identical to what was acknowledged earlier. As such, the first sale contract of this case was concluded by Plaintiff 2 and Plaintiff 1 as the party concerned, and accordingly, Plaintiff 1 was not the party concerned, and the Defendant’s assertion is also groundless.

5. Conclusion

Therefore, the claim against the defendant by the plaintiff 1 is dismissed as it is without merit, and the claim against the defendant by the plaintiff 2 in the conjunctive case is accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the claim by the plaintiff 2 including the claim added in the trial and the defendant's appeal are accepted, and the part against the defendant in the judgment of first instance is modified as above. It is so decided as per Disposition.

[Attachment]

Judges Kim Hong-il (Presiding Justice)