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(영문) 대법원 1967. 3. 21.자 65마1021 결정

[등기공무원처분에대한재항고][집15(1)민,223]

Main Issues

Other registration and provisional registration commissioned by the court referred to in the main sentence of Article 129 of the Land Improvement Project Act;

Summary of Judgment

A. If a request for registration received before a land substitution registration has been made after a public notice of land substitution authorization was given for the purpose of preserving the right to claim ownership transfer registration due to the sale before the public notice of land substitution authorization, it is against Article 40 of the former Urban Planning Act (Act No. 983 of Jan. 20, 202), Article 129 of the Land Improvement Business Act, and Article 16 of the Land Improvement Registration Rules (Abolition). Thus, it constitutes Article 55 subparagraph 2 of the Registration of Real Estate Act.

B. The provisional registration of the land of this case was announced on March 16, 1962 by the Seoul Special Metropolitan City Public Notice No. 677 of March 16, 196, and then on March 13, 1964, before the land substitution registration was made by March 7, 1964. The "A" issued a provisional disposition order upon the application made by the court pursuant to Article 37 (1) of the Registration of Real Estate Act, and completed the provisional registration upon the request by the court. This is an interested party in the objection against the provisional registration, and Article 129 of the Land Improvement Project Act, Article 55 subparagraph 2 of the Registration of Real Estate Act, Article 55 of the Registration of Real Estate Act, which is of the nature that the registered public official should take the procedure for ex officio cancellation, and the registration was completed on March 9, 1964.

[Reference Provisions]

Article 129 of the Land Improvement Project Act

Re-appellant

Current Cultural Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

upper protection room:

Other Party

United States of America

Seoul Civil District Court Decision 64Ra612 delivered on September 14, 1965

Text

The reappeal is dismissed.

Reasons

The grounds of reappeal are examined as to the reappeal agents.

1. On the ground of reappeal, it is necessary to specifically point out and point out the illegality that is the ground for reversal of the original decision, and even in the case of a document in the record, it is not a legitimate ground for reappeal of the case where the re-appellant asserts that he did not make any judgment as to each of the contents of the original decision by citing the objection and its reason submitted at the court of first instance or at the court of original instance or at the court of original instance, or each of the contents of the reason for appeal. Thus, it cannot be a legitimate ground for reappeal of the case.

2. Article 129 of the Land Improvement Business Act provides that with respect to the land located within the area where the land improvement project is implemented, no other registration shall be made unless a registration is made for such land improvement project, and except for the case where an applicant proves the fact that a cause for registration has occurred before the public notification under the provisions of the same paragraph is made by documents fixed, while provisional registration under the provisions of Article 37 of the Registration of One Real Estate Act is not made with the consent of the person liable for provisional registration under the provisions of Article 38 of the same Act; the court having jurisdiction over the location of the real estate has recognized that there was an explanation of the cause for such provisional registration under the provisions of Article 59 (4) of the same Act; the court has entrusted the temporary registration to the effect that no provisional registration has been made under the provisions of Article 97 of the same Act for the purpose of preserving the ownership of the land which is within the area where the provisional registration has been executed; and the court has entrusted the temporary registration to the effect that no provisional registration has been made under the provisions of Article 971 of the same Act;

3. In light of Article 59(4) of the Land Improvement Business Act, when the Minister of Agriculture and Forestry grants authorization under paragraph (1) of the same Article, he shall publicly announce the fact, and even though Article 129 of the same Act provides that "after the public notice is made under Article 59(4) of the same Act, he shall notify it to the competent tax office and registry office," the above notice to the tax office and registry office shall be deemed to be "after the public notice is made under Article 59(4) of the same Act, it shall not be deemed to have any effect on the validity of registration after the public notice is made."

4. On March 7, 1964, the other party who has filed an objection to the disposition of the registry official on the provisional registration of this case cannot be deemed as a person who has no interest in the objection, as long as it is apparent in the record that he had filed an objection to the registration of co-ownership transfer with respect to shares of 85.2/180 (shares other than an appeal) of the land in dispute on the nineth day of the same month after the registration was completed due to the land improvement confirmation. In addition, as the provisional registration is stated, it is against Article 5 subparagraph 2 of the Registration of Real Estate Act, and the registration violates Article 55 subparagraph 2 of the Registration of Real Estate Act, and it was also viewed that the above other party's objection was urged to take the procedure of ex officio cancellation. In other words, it was obvious that the first instance decision by the court of first instance was not an interested party on the provisional registration, and it is clear that the decision of the court of first instance falls under Article 175 (1) 6 of the Registration of Real Estate Act.

Therefore, according to the unanimous opinion of all participating judges, the decision is made in accordance with Articles 413(2), 400, and 384 of the Civil Procedure Act.

Judges of the Supreme Court (Presiding Judge) Ma-dong (Presiding Judge)