A debtor's act of making a new reservation to sell and purchase real estate in order to extend the exclusion period when the right of full reservation under the reservation to sell and purchase the real estate owned by him/her, which is the only property, is expected to expire after the lapse of the exclusion period, results in the debtor's new burden of liability that may not be borne by the debtor.

1. In the pre-sale agreement stipulated under Article 564(a) of the Civil Act, the rights that may become effective as a trade by expressing the other party to the pre-sale agreement, i.e., the right to complete the pre-sale agreement, where the parties to the pre-sale agreement have agreed to exercise within such period, or within 10 years from the time the pre-sale agreement was made, unless otherwise agreed by the parties, and the right to complete the pre-sale agreement ceases to expire after the lapse of the exclusion period (see, e.g., Supreme Court Decisions 91Da44766, 44773, Jul. 28, 1992; 2016Da42077, Jan. 25, 2017).

A debtor's act of making a new reservation to sell and purchase real estate in order to extend the exclusion period when the right of full reservation under the reservation to sell and purchase the real estate owned by him/her, which is the only property, is expected to expire after the lapse of the exclusion period, results in the debtor's new burden of liability that may not be borne by the debtor.

2. According to the lower judgment, the following facts are revealed.

A. On October 26, 2004, the Plaintiff filed a payment order against the Nonparty for the payment order of KRW 3,475,528 by Seoul Central District Court Decision 2004Da23149, and the said payment order became final and conclusive on October 26, 2004. In order to extend the prescription period, the Plaintiff filed a lawsuit claiming the amount of indemnity at the same court No. 201128, Jul. 30, 2014, and received a decision of performance recommendation ordering the payment of the said amount of KRW 3,475,528, and its delay damages, which became final and conclusive on August 21, 2014.

B. On September 5, 2005, the Nonparty made a promise to sell and purchase each real estate listed in the separate sheet of the judgment of the first instance (hereinafter “instant real estate”) (hereinafter “the instant promise”), the sales amount of KRW 42 million, and the time limit for exercising the right to full completion of the reservation, which shall be December 30, 2005, and thereafter, made it possible for the Nonparty to exercise the right to claim a transfer of ownership (hereinafter “the provisional registration”) on September 20, 2005 as long as the purchase and sale promise remains effective. The Nonparty completed the provisional registration of the right to claim a transfer of ownership (hereinafter “the provisional registration”) on the instant real estate on September 20, 205.

C. On April 6, 2015, the Nonparty: (a) made a pre-sale agreement with the Defendant and the instant real estate on June 30, 2015; (b) on June 30, 2015, with the time limit for exercising the right to make a pre-sale agreement; and (c) made a pre-sale agreement to ensure that the pre-sale agreement remains effective even thereafter (hereinafter “pre-sale agreement”). On the same day, the Nonparty completed the provisional registration of the right to claim transfer of ownership on the ground of the pre-sale agreement (hereinafter “second provisional registration”).

3. A. The lower court determined that the Defendant was liable for the Nonparty to perform the registration procedure for cancellation on September 5, 2015 with respect to the registration of Type 1 (A). For that reason, the instant promise for the first sale and purchase of the instant case was made on December 30, 2005 by allowing the Nonparty to exercise the time limit for the exercise of the right to completion of the reservation, and thus, the said time limit was not fixed by allowing the Nonparty to exercise the right to completion of the reservation even thereafter. Therefore, the right to completion of the reservation was extinguished upon the expiration of the exclusion period on September 5, 2015, ten years after the date of the first sale reservation.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the period of exclusion or the extinguishment of the right of subrogation in the obligee’s subrogation.

B. The lower court determined that the reservation for the second sale of the instant real estate by the Defendant and the Nonparty should be revoked, and that the Defendant was obligated to implement the procedure for the second sale registration of the instant real estate, which is the sole property of the Nonparty, to the Nonparty. For that reason, it was concluded that the Defendant and the Nonparty again made a promise for the second sale of the instant real estate, when the limitation period of the right to completion of the reservation pursuant to the first sale of the instant real estate, which is the sole property of the Nonparty, is still imminent and is scheduled

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court’s determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of

4. The Defendant’s appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)