2. The costs of lawsuit shall be borne by the Plaintiff.

A. On October 12, 2010, the registration of initial ownership was completed in the name of Nonparty 2 with respect to the shares 35/100 (hereinafter “instant shares”) from among the buildings listed in the separate sheet (hereinafter “the instant separate stores”), and the registration of initial ownership was completed on October 25, 2010 and the provisional registration of the Defendant’s right to claim partial transfer of shares was completed on October 25, 2010 (hereinafter “the provisional registration of this case”). < Amended by Presidential Decree No. 46498, Oct. 25, 2010; Presidential Decree No. 22498, Oct. 25, 2010>

B. The Plaintiff, as Nonparty 2’s creditor (lease 520,000,000 and damages for delay thereof) filed an application for the commencement of compulsory auction as to the instant shares at Seoul Central District Court No. 2012,12963, and the registration of the decision to commence compulsory auction was completed on April 25, 2012 as to the instant shares on April 25, 2012 (hereinafter “instant decision to commence compulsory auction”).

C. Since then, the registration of the decision to commence compulsory sale of this case was cancelled ex officio as a registration infringing upon the rights preserved by a provisional registration, as the principal registration based on the instant provisional registration, which was based on the provisional registration of this case, and the registration of the decision to commence compulsory sale of this case was completed on July 4, 2012 by the registration No. 155949, which was received on July 5, 2012 by the same registry office (hereinafter “instant principal registration”).

[Ground of recognition] Unsatisfy, Gap evidence 1 and 3

2. Judgment on the Plaintiff’s assertion on cancellation of the principal registration of this case

A. The plaintiff's assertion

The provisional registration of this case is concluded by Nonparty 1 by forging a pre-sale agreement under the name of the Defendant, and is null and void because the application is not based on the Defendant’s truth, which is the person entitled to make a registration. Therefore, this registration of this case cannot be in accordance with the order of provisional registration and is null and void due to a disposition of disposal after the registration of the decision of compulsory commencement of auction of this case. The Plaintiff seeks the cancellation of the principal registration of this case by subrogation of Nonparty 2 with the loan claim against Nonparty

B. Determination

1) Whether the provisional registration of this case is a registration invalidation of cause

In light of the following facts recognized by Nonparty 1, who is a new building-building-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-sale-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-sale-sale-sale-sale-sale-sale-sale-sale-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership-ownership], despite the Defendant’s refusal of a sale-sale-sale-sale-sale-sale-sale-sale-sale-ownership-ownership-

1. The facts are as follows: (a) although Nonparty 1 could not own 100% shares of the divided stores of this case due to the new construction and sale of a commercial building in which the divided stores of this case are located in Hysung C&C and Dong business, he could not own 100% shares of the divided stores of this case; (b) as if Nonparty 1 had the shares of 100% shares of the divided stores of this case, the Defendant deceiving the Defendant on July 21, 2010; (c) on July 21, 2010, the separate stores of this case (hereinafter referred to as “sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-sub-

② The Defendant paid KRW 200,000,000 in total the down payment and intermediate payment by July 28, 2010 pursuant to the instant sales contract. However, Nonparty 1 entered into a settlement agreement with Sungsung C&C Co. on August 5, 2010 to have only rights to the instant shares. Nonparty 2, who succeeded to Nonparty 1’s status under the business partnership agreement, completed the registration of shares on the collective building register on August 13, 2010 and the registration of ownership preservation on October 12, 2010.

③ The Defendant refused to submit a proposal for the registration of ownership transfer with respect to the instant shares from Nonparty 1, and demanded payment of 250,000,000 under the name of the cancellation of the contract, such as the refund of the purchase price already paid and the compensation for damages, etc. The Defendant: (a) on October 19, 2010, prepared and issued to the Plaintiff a written confirmation (written evidence No. 4) stating that “If the instant divided stores are unable to perform the registration of ownership transfer as to the instant divided stores by October 27, 2010, it shall compensate for cash in the event that the registration of ownership transfer is rescinded and it is impossible to perform the registration of ownership transfer as to the instant divided stores.”

④ From October 23, 2010, Nonparty 1 prepared a pre-sale agreement with the Defendant and Nonparty 2 with respect to the instant share by forging the Defendant’s name and completing the provisional registration of this case at will on October 25, 2010. Nonparty 1, upon receiving a demand for cash compensation pursuant to a written confirmation from the Defendant on October 29, 2010, prepared and delivered to the Defendant for payment of KRW 230,000,000 to the Defendant until November 29, 2010 (Evidence 5). However, Nonparty 1 did not pay the said money.

⑤ Around November 2010, the Defendant filed a criminal complaint against Nonparty 1 for the crime of fraud, fabrication of private documents, and uttering on the ground that Nonparty 1 acquired money from the Defendant as the sale price for the sectioned stores of this case, forged the name of the Defendant, and completed the provisional registration of this case. A conviction on the relevant criminal case against Nonparty 1 was finalized.

(ii) agreements on the diversion of registration of invalidation;

The Defendant asserts that, even if the provisional registration of this case is null and void, the provisional registration of this case is valid on or around July 4, 2012, the provisional registration of this case was agreed by the Defendant and Nonparty 2 to use the invalid provisional registration upon entering into a sales contract for the share of this case, and completed the principal registration of this case.

Comprehensively taking account of the overall purport of the arguments in Gap 2 and 7, the defendant may recognize the fact that the provisional registration of this case was completed on July 5, 2012 when he purchases the shares of this case from the non-party 2 under the name of return, etc. equivalent to KRW 80,00,000, out of the money obtained by the non-party 1, which was in criminal proceedings against the non-party 1 for criminal facts, such as fraud, etc. around July 4, 2012. Therefore, the defendant may assert the validity of the provisional registration of this case by an agreement on the utilization of the registration of this case. Thus, the defendant may oppose the plaintiff seeking the cancellation of the provisional registration of this case by subrogation of the non-party 2.

Since the registration of the decision to commence compulsory sale of this case was completed after the provisional registration of this case was made between the defendant and the non-party 2 before the agreement on the utilization of the provisional registration of this case, the defendant asserted the validity of the provisional registration of this case on the ground of the agreement on the utilization of provisional registration with respect to the plaintiff, who had an interest in the registration prior to the agreement on the utilization of registration.

Since a creditor's subrogation right exercises the right against a third party debtor, the third party debtor may oppose the creditor with all defenses that he/she has against the debtor, but the creditor can only assert it within the extent of the grounds that he/she can assert, and he/she cannot assert the reason based on his/her own independent circumstance between himself/herself and the third party debtor (see Supreme Court Decision 2009Da4787, May 28, 2009). Since the decision to commence the compulsory auction of this case was issued prior to the completion of the principal registration of this case according to the provisional registration utilization agreement in this case, the defendant cannot oppose the plaintiff within the extent of the provisional registration utilization agreement, but the plaintiff who seeks to cancel the principal registration of this case by subrogation of the non-party 2 cannot assert the above grounds that he/she has against the defendant. Thus, the plaintiff's above assertion is without merit.

C. Sub-decision

Ultimately, the Plaintiff’s assertion seeking the cancellation of the principal registration of this case on the ground that the provisional registration of this case is null and void on behalf of Nonparty 2 is without merit.

3. Judgment on the Plaintiff’s assertion to cancel the provisional registration of this case

A. The plaintiff's assertion

The provisional registration of this case is a registration of invalidation and the agreement between the defendant and the non-party 2 on the diversion of provisional registration of invalidity was made after the registration of the decision on commencement of compulsory sale of this case, which is the registration of seizure, and thus the provisional registration of this case is null and void for the plaintiff. Therefore, the priority order of the principal registration of this case cannot be prior to the registration of seizure of the plaintiff. Therefore, the plaintiff can seek cancellation of provisional registration of this case which is null and void for the defendant as a legitimate seizure authority

B. Determination

In order for the Plaintiff to seek cancellation of the provisional registration of this case, the Plaintiff must assert and prove that the Plaintiff has a title to claim cancellation, and if it is not recognized that the Plaintiff has such title, even if the provisional registration of this case in the name of the Defendant is an invalidation registration to be cancelled, the Plaintiff’s claim may not be accepted. The Plaintiff is a creditor who filed an application for commencement of compulsory auction with respect to shares of this case, and the seizure by the decision to commence compulsory auction of this case and its effect are the validity of the prohibition of disposal by law or in fact, and it is difficult to view that the Plaintiff is a title to seek cancellation of the provisional registration of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-sung