[등기공무원의처분에대한이의신청기각결정에대한재항고][집29(2)민,171;공1981.9.1.(663),14147]
Among the two registrations of preservation of ownership in the same person's name, whether the application is appropriate, such as registration of inheritance based on the preceding registration of preservation (affirmative)
Where the registration of ownership preservation overlaps with the same real estate in the name of the same person, the registration of ownership preservation made later shall be null and void without having to determine whether the registration of ownership transfer, etc. based thereon conforms to the substantive relationship. Therefore, the disposition of the registry official dismissed on the ground that the application for registration of ownership transfer based on the preceding registration constitutes "when the application for registration of inheritance, etc
Subparagraph 2 of Article 55 and Article 130 of the Registration of Real Estate Act
Supreme Court Decision 72Ma776 delivered on November 29, 1972, 78Da1648 delivered on January 16, 1979
Appellant 1 and 2 re-Appellants' Attorney Lee Jae-soo
Seoul Central District Court Order 80Ma28 dated November 19, 1980
The original decision is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court.
The grounds of reappeal are examined.
According to the reasoning of the original decision, on October 4, 1921, the court below concluded that the registration of ownership transfer was effective in the name of the non-party non-party non-party 1's father of Gangseo-gu, Seoul as to 813 square meters, and there is no change of ownership. On the other hand, on November 13, 1953, the registration form was divided into 53 square meters and 10 parcels, and the registration form was passed through the second registration of ownership transfer in the name of the above non-party 1 (the death of August 1, 1950) and the second registration passed through the second registration of ownership transfer in the name of the above non-party 1 (the non-party 1, 1950), and held that if a new registration was passed through through a new registration based on the preservation registration, the court below held that the registration officer cannot ex officio cancel the registration later and the registration of ownership transfer based on the above registration cannot be seen as a new registration application of ownership transfer based on Article 5 of the Registration of Real Estate Act.
However, Article 55 subparagraph 2 of the Registration of Real Estate Act provides that "where an application is not filed for registration, it is obvious that the application cannot be allowed to do so by law (see Supreme Court Order 72Ma776, Nov. 29, 1972). In case where a registration of ownership in the name of the same person overlaps with a registration of ownership in the name of the same person due to a different registration form for the same real estate, it shall be null and void without examining only the formal requirements for registration (see Supreme Court Decision 78Da1648, Jan. 16, 1979). Thus, if it is satisfied after examining only the formal requirements, it shall be accepted as a registration public official who should accept the application for registration and the registration based on the registration form based on the premise that the registration of ownership should be registered later, it shall not be dismissed by misapprehending the legal principles on the registration of real estate. However, if the court below erred by misapprehending the original decision by misapprehending the legal principles on the registration of real estate.
Therefore, the decision of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Civil Procedure District Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Jong-soo (Presiding Justice)