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(영문) 인천지방법원 2018. 12. 12. 선고 2017가단237772 판결

매매예약완결권 행사 제척기간 경과에 따른 소유권이전등기청구권보전가등기에 대한 말소등기 청구[국승]

Title

Claim for the cancellation registration of ownership transfer registration due to the expiration of the exclusion period for the exercise of the right to completion of sale reservation;

Summary

(Confession) The Defendants, who have the right to make a provisional registration of the right to claim ownership transfer on the instant real estate based on the reservation for sale, did not exercise the right to complete the reservation within 10 years from the time the reservation was made, so the right to complete the reservation becomes extinct upon the lapse of the exclusion period and the registration of the right to claim ownership transfer should be cancelled.

Cases

2017da237772 Cancellation of provisional registration

Plaintiff

Korea

Defendant

EA and one other

Conclusion of Pleadings

November 28, 2018

Imposition of Judgment

December 12, 2018

Text

1. The defendant Lee Dong-A shall implement the procedure for registration of cancellation of the provisional registration of the right to claim transfer of ownership completed by the Incheon District Court No. 19** the right to claim transfer of ownership as of March 7, 2001, received on March 7, 2001.

2. The defendant HaE has expressed its intention of acceptance with respect to the registration of cancellation of provisional registration mentioned in paragraph 1 above.

3. The costs of lawsuit shall be borne by the Defendants.

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 public notice (Defendant 1): Article 208 (3) 3 of the Civil Procedure Act.

3. Judgment on deemed confession (Defendant 2): Articles 208 (3) 2 and 150 (3) of the Civil Procedure Act.

Cheongwon of the Gu

1. Basic facts

(a) The existence of the preserved claim (the establishment of tax claim);

The delinquent amount of real estate (hereinafter referred to as “the real estate of this case”) listed in the separate sheet (hereinafter referred to as “I”), which is the property owned by the plaintiff Kim Jong-○ (hereinafter referred to as “Mag○○”), shall be KRW 6,267,045,780, including the comprehensive income tax imposed by the plaintiff YY director of the tax office, and its details shall be as follows (the entire certificate of registered real estate No. 1, the whole certificate of registered real estate No. 2, the evidence No. 2, the evidence No. 1, and the evidence No. 2).

(b) Records of provisional registration and provisional disposition;

On February 28, 2001, Kim ○-○ entered into a trade reservation with respect to the real estate in this case with Nonparty 1, 1, 2001, and completed the provisional registration of the right to claim transfer of ownership on the ground of the trade reservation in the nearest △, △, △, and △ (hereinafter referred to as “minimum △, △”) by accepting as the registration office of the competent district court on March 7, 2001.

Defendant 2 EE (hereinafter referred to as “EE”) has completed the execution of provisional disposition on September 24, 2003 by accepting as 11*** on September 25, 2003, the registration of the above right to claim for transfer of ownership as the registry office of the XX District Court (2003Kahap2**).

(c) Relationship between the parties;

The plaintiff is a seizure authority of the real estate of this case, and the largest △△△ is a person who provisionally registered the right to claim ownership transfer on the ground of the purchase and sale reservation of the real estate of this case, and the defendant 1A is the inheritor who has the right to claim ownership transfer registration with respect to each of the 1/5 shares of the real estate of this case as he dies with the child of the largest △△△△△, and the HaE has the right to claim ownership transfer of provisional registration (No.

2. Necessity of preservation (the insolvency ○○).

○○○○ currently has been assessed as the property of this case which is the reason for the pertinent real estate amounting to KRW 29,295,280, and is in excess of the obligation due to the tax liability of KRW 267,045,780 (written inquiry about the officially assessed individual land price No. 4).

3. Existence of subrogation right;

In the unilateral promise for sale, the right of the other party to the promise to make the trade effective by expressing his/her intention of completion of the trade promise, that is, the right of completion of the trade promise, if it is a sort of right to form and exercise period between the parties, within such period, and if there is no such an agreement, within 10 years from the time when the reservation is made, and the right of completion of the promise shall be extinguished upon the lapse of the exclusion period (see Supreme Court Decision 2000Da26425, Jan. 10, 2003).

The right to complete the above reservation of sale has expired after the lapse of February 28, 201, which was ten years from February 28, 2001, the above reservation date, and the limitation period has expired.

4. Non-exercise of rights by Kim○-○.

However, the provisional registration of the right to claim transfer of ownership in accordance with the purchase and sale promise, which was received on March 7, 2001 from the registration office of the last △ District Court for the real estate in this case, is to be cancelled as the exclusion period has expired. However, the owner of the real estate in this case, Kim ○, who is the owner of the above real estate, does not exercise the right to claim cancellation of registration.

5. The obligation to consent of the EE;

EE, which has made a provisional registration with the right to claim a cancellation of provisional registration as a right to be preserved, is obligated to express its consent to the registration of cancellation of provisional registration by the Plaintiff. In this case, the right to claim a cancellation of provisional registration, which is a right to be preserved by the decision of prohibition of provisional disposition, and the purport of the Plaintiff’s claim, are both identical to the contents of the right to claim a cancellation of provisional registration, and shall not be deemed to conflict with the decision of prohibition of provisional disposition (see, e.g., Supreme Court Decision 9Da1071, May 14, 1999).

6. Conclusion

Therefore, the plaintiff, as a tax claim of Kim○-○, filed the instant lawsuit in order to obtain a judgment identical to that stated in the purport of the claim in subrogation of Kim○-○.