[등기공무원처분에대한이의신청기각결정][공1988.4.15.(822),592]
(a) Whether or not a person may seek for the cancellation of an affirmative measure taken by a registry official by means of an objection under Article 178 of the Registration of Real Estate Act;
B. The meaning of "where the case is not registered" under subparagraph 2 of Article 55 of the Registration of Real Estate Act
A. In a case where a registrar took an active disposition to complete the registration procedure upon the application of the applicant, even if such disposition was unfair, the cancellation cannot be claimed by means of objection pursuant to Article 178 of the Registration of Real Estate Act, apart from the dispute over the validity of the registration through a lawsuit, unless it falls under subparagraphs 1 and 2 of Article 55 of the Registration of Real Estate Act.
(b) For the purpose of subparagraph 2 of Article 55 of the Registration of Real Estate Act, the term “where the case is not to be registered” means the case where it is obvious that the application for registration cannot be permitted mainly by the purport of the application itself; and
(a) Article 178 of the Registration of Real Estate Act;
A. Supreme Court Order 21.21.21, 69Ma1023, 1970.29. 29. 70Ma738, 1979. 20, 79Ma360, 1980. 13. 13, 79Ma412, 1984. 84. 84Ma99(b). < Amended by Supreme Court Order 72Ma776, Aug. 29, 1973; Supreme Court Order 72Ma7769, Jul. 10, 1980; Order 80Ma150, Apr. 6, 1984; Order 84Ma99
Re-appellant
Seoul Central District Court Order 194 April 20, 1987, 87Ra62
The reappeal is dismissed.
If an active disposition was taken by a registered official upon the application of an applicant for registration, the cancellation of the registration shall not be claimed in a way of objection pursuant to Article 178 of the Registration of Real Estate Act, apart from the fact that the disposition was improper, unless it falls under subparagraphs 1 and 2 of Article 55 of the Registration of Real Estate Act (see, e.g., Supreme Court Order 194.4.6, Apr. 6, 1984; Order 84Ma99, Feb. 13, 1980; Order 79Ma412, Nov. 20, 1979; Order 79Ma360, Nov. 20, 1979; Order 70Ma738, Feb. 21, 1970; Order 69Ma1023, Feb. 21, 1970).
However, the phrase "when the case is not to be registered" in Article 55 subparagraph 2 of the Registration of Real Estate Act refers to the case where it is obvious that the application for registration cannot be permitted by law only by the purport of the application (see, e.g., Supreme Court Order 84Ma99, Apr. 6, 1984; Order 80Ma150, Jul. 10, 1980; Order 73Ma69, Aug. 29, 1973; Order 72Ma776, Nov. 29, 1972; Order 72Ma776, Nov. 29, 1972).
Therefore, the decision of the court below to the same purport is just, but it was erroneous for the court below to determine that the share of Nonparty 1 exists in the registry at the time of the application for registration of this case in light of the records, but this did not change the result.
The assertion is groundless.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jong-chul (Presiding Justice)