[압류등기말소][집39(1)민,310;공1991,1258]
If a provisional registration has been made for the purpose of preserving priority but the provisional registration has been made after the provisional registration of the person who made the principal registration, the right to request cancellation of the registration (affirmative)
The plaintiff's acquisition of a security right to real estate in dispute and provisional registration is not made in that way, but a provisional registration is made for the purpose of purchasing real estate and preserving the order of priority, regardless of claims and obligations. Thus, the defendants' registration of national or local tax seizure after provisional registration is filed for the reason that it cannot be asserted against the plaintiff. Thus, the court's judgment in the procedure of objection against the disposition by the registration officer or the propriety of the disposition is original. Since the defendant has a final power over the substantive legal relationship, even if there is the length of objection against the disposition by the registration officer, the plaintiff is entitled to file a lawsuit against the defendants in order to resolve the dispute by
Article 226 of the Civil Procedure Act
Kim Young-kon Attorney Jeong-dae, Counsel for the defendant-appellant
Hongk Law Firm, Attorneys Kim Jong-young, et al., Counsel for the plaintiff-appellant-appellant-appellant
Seoul High Court Decision 90Na5070 delivered on August 22, 1990
The judgment of the court below is reversed.
The case is remanded to Seoul High Court.
According to the reasoning of the judgment below, the court below rejected the plaintiff's lawsuit on the ground that if the registrar did not cancel ex officio the registration of seizure of the defendants of this case, such as the plaintiff's principal registration, when the principal registration based on the provisional registration of the plaintiff was entered on the plaintiff's principal registration, the plaintiff should raise an objection against the passive disposition of the registrar, and the correction thereof should be sought against the registrar, and that the plaintiff
However, the plaintiff's claim of this case does not mean that the plaintiff acquired a security right to the disputed real estate in this case and made a provisional registration in this way, but purchased such real estate regardless of the claim's obligation. However, since a provisional registration was made for the purpose of priority preservation, and the registration of seizure by the defendants after such provisional registration cannot be asserted against the plaintiff, the plaintiff's claim for cancellation is filed for the reason that the registration of seizure by the defendants cannot be asserted against the plaintiff. Thus, the court's judgment in the objection procedure that contests the disposition by the registration officer or the validity of the disposition is not final and conclusive with respect to the substantive legal relationship connected between the plaintiff and the defendant, so the plaintiff can file a lawsuit against the defendants in order to resolve
The judgment of the court below is erroneous in the misunderstanding of legal principles as to the interest in a lawsuit, which unfairly dismissed the lawsuit, and the appeal to this point is with merit, and the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per
Justices Kim Jong-soo (Presiding Justice)