[대지권의표시등기절차이행][공2004.8.15.(208),1303]
[1] In a case where a third party was awarded a successful bid through an auction procedure in a situation where the third party did not register the ownership of a building site while the ownership of the building site was not registered, whether the successful bidder acquires the right to use the building site (affirmative)
[2] In a case where the ownership of a partitioned building is transferred before and after the transfer from the buyer without registering the right to a site, whether the present owner of the partitioned building may directly request the buyer to change the right to a site under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act (affirmative)
[1] The registration of ownership transfer of a right to a site due to the delay of a cadastral adjustment, etc. was made on the part of exclusive ownership after the registration of ownership transfer was made on the part of exclusive ownership under an agreement at the end of the year after the cadastral adjustment was made, and the registration of ownership transfer was made on the part of exclusive ownership. After which the registration of ownership transfer was not made on the site, the successful bidder obtains the right to use the site under Article 2 subparagraph 6 of the Multi-unit Building Act as the principal right
[2] Registration of change of a site ownership under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act for a successful bidder who is the owner of a section for exclusive use. Since the form of change of a site ownership under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act is that the final owner of the relevant section for exclusive use acquires the right to a site immediately from the seller by registration, the form constitutes registration of change of the indication of a building or the actual owner of the relevant section for exclusive use. If the expression of intention is made only by the seller, the purpose can be achieved without active cooperation or continuous act between the seller and the intermediary. Thus, the owner of the section
[1] Article 2 subparag. 6 and Article 20 of the Multi-Unit Residential Building Act / [2] Article 20(1) of the Multi-Unit Residential Building Act, Article 60-2 of the Enforcement Rule of the
[1] Supreme Court en banc Decision 98Da45652, 45669 decided Nov. 16, 200 (Gong2001Sang, 39) Supreme Court Decision 2000Da10741 decided Jan. 30, 2001 (Gong2001Sang, 532) Supreme Court Decision 2001Da22604 decided Sept. 4, 2001 (Gong2001Ha, 2170) / [2] Supreme Court Decision 94Nu1019 decided Jun. 16, 1995 (Gong195Ha, 2637)
Plaintiff (General Law Firm, Attorneys Lee Im-sung et al., Counsel for the plaintiff-appellant)
Urban Development Corporation in Seoul Special Metropolitan City
Seoul District Court Decision 2002Na4848 delivered on June 12, 2002
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
1. Fact-finding and judgment of the court below
A. Fact-finding by the court below
In full view of his adopted evidence, the court below found that the defendant, on December 22, 1992, sold the apartment building No. 101, Gangseo-gu Seoul Metropolitan Government ( Address omitted), ○○○○○ apartment, No. 908, 101, together with the site (the above apartment's section for exclusive use shall be referred to as "exclusive ownership", and the co-ownership share in the site" shall be referred to as "share in the site"), on the part of exclusive use, on April 30, 1993, registered the preservation of ownership under his name on June 26, 1993, and did not transfer the registration for the share in the site to the non-party 1 on which the parcel number of the site and the proportion of the site are not determined. However, on the other hand, the registration for the ownership transfer of the apartment building was not made under the non-party 2's name on November 22, 196, and on the other hand, the ownership registration of the land was not made under the name of the non-party 194.
B. The judgment of the court below
In addition, based on the above facts, the court below held that the registration of change of site right (hereinafter referred to as "registration of change of site right") made on the building register pursuant to Articles 42(2) and 101(2) of the Registration of Real Estate Act is a registration of the actual right, but it is a registration of change of site right, which is made in the indication column other than the item column of the registry, and its nature is indicated. Therefore, the registration is made on the sole application of the person responsible for registration or the person responsible for registration. Since the plaintiff acquired the right to use site prior to the transfer from Nonparty 1, the plaintiff acquired the right to use site as the right to claim the ownership transfer of the above site right or the share of site, and completed the registration of change of site right under Article 101 of the Registration of Real Estate Act by subrogation of the intermediate acquisitor of the above section under the title to preserve the right to use site, or the plaintiff's appeal against change of site right under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act by subrogation of the above intermediate acquisitor and the above right to preserve.
2. The judgment of this Court
In the event that a seller of a plot of land obtains a successful bid for a section of exclusive ownership due to the delay of cadastral adjustment, etc., the registration of ownership transfer for the section of exclusive ownership was made at the end of the year following the cadastral adjustment, and the registration of ownership transfer has been made to the buyer, but the auction procedure concerning the section of exclusive ownership was conducted without the registration of ownership transfer for the site, and the third party is awarded the right to use the site as the principal right (see Supreme Court en banc Decision 98Da45652, 4569 delivered on November 16, 200).
Therefore, if a transfer of ownership is made in the name of the owner of the section of exclusive ownership with respect to the share of the site before the auction court after the successful bid, the ownership transfer registration shall be made in the name of the successful bidder at the request of the auction court. However, if the ownership transfer registration for the share of the site is not made by the time of the request for registration, the successful bidder can make a transfer registration only for the section of exclusive ownership by the entrustment of registration. The successful bidder can make a transfer registration for the ownership registration only by the entrustment of registration. For the site, the successful bidder shall make a registration for change of the ownership under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act for the successful bidder, or the successful bidder shall make a registration for change
In addition, registration of change of right to a site under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act for a successful bidder who is the owner of a section for exclusive use. The form of registration of change of right to a site under Article 60-2 of the Enforcement Rule of the Registration of Real Estate Act is that the final owner of the relevant section for exclusive use acquires the right to a site immediately from the seller by registration (see Supreme Court Decision 94Nu11019, Jun. 16, 1995). Thus, registration of change of right to a site from the final owner of the relevant section for exclusive use constitutes registration of co-ownership of land from the seller to the last owner of the section for exclusive use. If the expression of intention is expressed, the purpose of registration can be achieved without active cooperation or continuous
Nevertheless, the court below, unlike its different view, has erred in the misapprehension of the legal principles as to the remaining change of a site ownership which did not exhaust all necessary deliberations, and thereby affected the conclusion of the judgment. The plaintiff's ground of appeal pointing this out is justified, and this court has accepted its claim.
3. Conclusion
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.
Justices Lee Yong-woo (Presiding Justice)