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(영문) 서울서부지방법원 2018. 09. 19. 선고 2018가단103547 판결

매매예약 완결권은 10년 이내 행사하지 않으면 제척기간 경과로 소멸함.[국승]

Title

If the right to complete the purchase and sale reservation is not exercised within 10 years, it shall expire at the expiration of the exclusion period.

Summary

If the right to complete the provisional registration of a pre-sale is not exercised within 10 years, the provisional registration of a pre-sale ceases to exist at the expiration of the exclusion period, so the provisional registration of a pre-sale should be cancelled at the expiration of the exclusion period, and the creditor may exercise

Related statutes

Article 24 of the National Tax Collection Act

Cases

2018 Mada 103547 Cancellation of provisional registration

Plaintiff

AAAA

Defendant

BBB Corporation

Conclusion of Pleadings

August 22, 2018

Imposition of Judgment

September 19, 2018

Text

1. The defendant will implement the procedure for the cancellation of the registration of the ownership transfer right claim right claim filed in accordance with the receipt No. 20595 on October 5, 2005 with respect to the real estate stated in the attached list to the Changwon District Court, the High Court, and the High Registry.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

Reasons

1. Indication of claims: It shall be as shown in attached Form; and

2. Judgment by service (Article 208 (3) 3 of the Civil Procedure Act).

Cheongwon of the Gu

1. Relationship between parties;

원고는 별지목록 기재 부동산을 압류한 압류권자(2007.2.22. 수영세무서, 2007.8.30. 울산세무서, 2010.2.01. 금정세무서)이고, 피고 BBBB 식회사(이하 '피고'라고 합니다.)는 별지목록 기재 부동산에 매매예약을 원인으로 가등기를 한 법인입니다.{갑 제 1호증 '등기사항전부증명서(법인)', 갑 제 2호증 1〜2 '등기사항증명서(부동산)참조 }

2. Seizure of the Plaintiff’s real estate

The plaintiff seized the real estate listed in the attached list in order to collect the delinquent amount of non-party CC (hereinafter referred to as "non-party 3"), and the national taxes related thereto are as shown in Table 1. (See Evidence 3 of this Act.)

3. Expiration of the exclusion period;

In the unilateral promise for sale, the right which would become effective as a result of the other party’s expressing his/her intention of completion of the subscription for sale, i.e., the right to conclude the subscription for sale and purchase, if it is a sort of right to form and exercise period between the parties, within such period, and if not, within 10 years from the time when the subscription is made, it shall be exercised, and when such period has elapsed, the right to conclude the subscription shall be extinguished upon the lapse of the exclusion period (Supreme Court Decision 200Da26425, Jan. 10, 200).

4. Insolvent of a debtor;

As of the date of filing a lawsuit, the Nonparty’s active property is as listed in Table 2 as follows, but the provisional registration of the right to claim ownership transfer based on the transaction agreement is established on the real estate A, so it is virtually impossible to repay it through compulsory execution, and therefore, the Nonparty is not capable of paying it. (See evidence 4 of subparagraph A, referred to as “electronic data on the property of the delinquent taxpayer”).

5. Exercise of rights by the defaulted taxpayer and exercise of rights by subrogation.

A. On October 05, 2005, the Nonparty entered into a pre-sale agreement with the Defendant on the real estate stated in the attached list, and completed the registration of the Non-Party’s right to claim ownership transfer on the Non-Party’s share based on the pre-sale agreement in the future.

B. The registration of the right to claim ownership transfer under the above paragraph (a) of this Article has already become extinct after the lapse of the limitation period for the Defendant’s failure to exercise the right to complete the purchase and sale reservation. Thus, the Defendants are obliged to cancel the registration of the right to claim ownership transfer on the real estate listed in the attached Table by way

C. As above, the non-party who is the delinquent taxpayer does not exercise his right against the defendant (the right to claim for the transfer of ownership). Thus, the plaintiff does not satisfy the taxation rights of KRW 92,382,300 up to now and intends to exercise in subrogation the delinquent taxpayer's right to preserve the preserved claim.

6. Conclusion

As above, the registration of the defendants' right to claim ownership transfer by the subscription of the sale of the real estate stated in the separate sheet shall be cancelled at the expiration of the exclusion period. The plaintiff has a tax claim against the non-party, and the non-party does not exercise his right to claim the cancellation of the provisional registration of right to claim ownership transfer registration against the defendant. In order to satisfy the tax claim against the non-party, the plaintiff filed the lawsuit of this case in order to implement the cancellation registration of each right to claim ownership transfer registration as stated in