[말소된가등기의회복등기][집25(1)민,76;공1977.3.1.(555) 9896]
In a case where a provisional registration based on a registration of transfer of ownership over a cause invalidation is cancelled, whether a registration of invalidation of cause of attachment was consistent with the substantive relationship and a provisional registration cancelled can be restored
The provisional registration based on the ownership transfer registration for the invalidation of cause was cancelled by the criminal act of “A” by the title holder of ownership transfer registration, and as a result, this cancellation registration conforms to the substantive relationship, and thus, the registration of ownership transfer in the name of “A”, which was not exempted from being legally acquired the ownership of this real estate after the “A”, was in accord with the substantive relationship, cannot be said to be said that the provisional registration of the Plaintiff, which was not able to be recovered from being the title holder of the provisional registration for this real estate, could not be said to have been made for the above reason.
Article 75 of the Registration of Real Estate Act
Attorney Choi Ho-su et al., Counsel for the defendant-appellant
Lee Jae-in et al., Counsel for the plaintiff-appellant
Seoul High Court Decision 76Na1644 delivered on October 29, 1976
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the Plaintiff’s agent’s grounds of appeal.
According to the facts duly admitted by the court below, Nonparty 1 forged relevant documents necessary for the registration of transfer of ownership, such as seals, etc. in the Nonparty’s name, which is the title holder of the real estate in this case, and went through the registration of transfer of ownership in the name of Nonparty 1 on May 29, 1975, and on the same day, borrowed KRW 5,00,000 to the Plaintiff on the same day, which was issued a provisional registration for the preservation of claim for transfer of ownership in the name of Plaintiff on the real estate, and Nonparty 1 again forged related documents necessary for the registration of cancellation of the above provisional registration in the Plaintiff’s name, and cancelled the above provisional registration in the Plaintiff’s name.
Therefore, as the judgment of the court below is justified, since provisional registration above the plaintiff's name was made based on the ownership transfer registration of the non-party 1's invalidity on the ground that it was made based on the ownership transfer registration of the non-party 1's invalidity, it should not be exempted from the registration of invalidation on the ground that it would correspond to the substantive relation. As a result, this cancellation registration should be cancelled by the non-party 1's act after the fact. Therefore, the plaintiff is in a position not to be able to bring about a provisional registration right holder on the real estate of this case. However, in this case, the judgment below's assertion that the plaintiff's claim for the above provisional registration cannot be accepted on the premise that it is possible to recover the above provisional registration after the fact that the ownership of the real estate of this case was newly acquired after the fact that it was null and void on the beginning of May 29, 1975 is consistent with the substantive relation. Thus, the plaintiff's appeal cannot be justified in the misapprehension of legal principles as to the above provisional registration of this case.
Justices Kim Yong-chul (Presiding Justice)