[소유권말소등기][공2002.9.15.(162),2036]
In a case where the original owner pays the amount in arrears and sells it to a third party and the third party is made a registration of ownership transfer in the name of the third party while the purchaser who has purchased farmland and paid the price in full failed to obtain the farmland sale certification under the former Farmland Reform Act or the farmland acquisition certificate under the Farmland Act and fails to complete the registration of ownership transfer, whether the registration of ownership transfer in the name of the third party is invalid (negative)
The farmland sales contract without any certification of farmland sale under the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994) shall be deemed to have still acquired ownership in the future unless the ownership was acquired unless the original owner of the farmland subject to public sale was issued a certificate of farmland sale under the former Farmland Reform Act or a certificate of acquisition of farmland acquisition under the Farmland Act (amended by Act No. 4817 of Dec. 1, 1996). Thus, since the ownership of the farmland subject to public sale shall not be deemed to have been acquired in the future because the original owner of the farmland was the owner of the farmland who received the registration of ownership of the farmland from the third party by paying it to the original owner of the farmland in arrears in the public sale procedure at the time of the enforcement of the former Farmland Reform Act.
Article 187 of the Civil Act; Article 19 of the former Farmland Reform Act (repealed by Act No. 4817 of Dec. 22, 1994); Article 8 of the Farmland Act
Supreme Court Decision 92Da28921 delivered on October 27, 1992 (Gong1992, 3287) Supreme Court Decision 93Da30747 delivered on October 8, 1993 (Gong1993Ha, 3051) Supreme Court Decision 94Da42402 delivered on December 9, 1994 (Gong195Sang, 460)
Plaintiff
Defendant
Seoul District Court Decision 2000Na27076 Delivered on October 10, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. As to the misapprehension of legal principle as to farmland acquisition
Upon citing the judgment of the court of first instance, the court below determined that the plaintiff's assertion that the plaintiff did not acquire the ownership of the real estate of this case on the premise that the plaintiff did not acquire the ownership of the real estate of this case since the non-party 1, the original owner of this case, paid the delinquent tax, and sold the real estate of this case to the defendant and completed the registration of ownership transfer to the defendant in order to preserve the right to claim for ownership transfer registration against the non-party 1 by asserting that the above ownership transfer registration, which was already completed in the defendant's future, was null and void, and that the plaintiff sought to cancel the above ownership transfer registration under the name of the defendant in subrogation of the non-party 1, in order to preserve the right to claim for ownership transfer registration against the non-party 1, the plaintiff purchased the real estate of this case in the public sale procedure, even if the plaintiff paid the purchase price of this case and did not obtain the certificate of farmland acquisition, since he did not obtain the ownership of the real estate of this case.
The farmland sales contract without any certificate of farmland sale under the former Farmland Reform Act can be effective as a bond contract, i.e., the effect of the change of real rights, i.e., the effect of transfer of ownership (see Supreme Court Decision 92Da28921, Oct. 27, 1992; Supreme Court Decision 93Da30747, Oct. 8, 1993, etc.). This legal principle applies to the case of sale under public sale procedure. The same applies to the case of sale under public sale procedure. Even if the sale decision and payment of the real estate were made during the public sale procedure at the time of the enforcement of the former Farmland Reform Act, the Plaintiff did not acquire the ownership unless the Plaintiff obtained the certificate of farmland sale under the former Farmland Reform Act or the certificate of acquisition of real estate under the Farmland Act, and therefore, it shall be deemed that Nonparty 1 still did not acquire the ownership as long as he did not obtain the ownership of the real estate in the future.
Therefore, the decision of the court below that rejected the plaintiff's above assertion is correct, and it is not erroneous in the misapprehension of legal principles as to farmland acquisition as alleged in the grounds of appeal.
2. On the part of the court below's decision as to the participation in breach of trust
Upon admitting the judgment of the court of first instance, the court below rejected the plaintiff's assertion that the contract between the defendant and the non-party 1 was null and void as a anti-social legal act since the defendant actively participated in the non-party 1's act in breach of trust and again purchased the real estate in this case sold during the public sale procedure, and completed the registration of ownership transfer. Thus, the contract between the defendant and the non-party 1 was known to the fact that the real estate was already sold to other persons at the time of the purchase of the real estate in this case. However, it cannot be readily concluded that the defendant purchased the real estate in this case from the non-party 1 with the knowledge of the fact that the real estate was sold to the non-party 1's act in breach of trust or double trade
3. Therefore, the appeal is dismissed, and all 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 Song Jin-hun (Presiding Justice)