[등기관의처분에대한이의][공2008상,605]
[1] The scope of the authority of a registry official to examine a unregistered building upon a request from an auction court for a registration of a decision to commence compulsory auction
[2] Whether a registrar of registration of preservation of ownership of a sectioned building according to the entrustment of registration of a decision on compulsory commencement of auction shall examine whether not only part of a sectioned building but also the rest of a sectioned building requiring registration of indication has the registration ability (affirmative)
[3] The case holding that a disposition by a registrar, who rejected the request for registration of a decision to commence compulsory auction on a sectioned building, is lawful
[1] Although there is no substantive authority to examine the conformity of legal relations under substantive law with the application and its accompanying documents, there is a formal review authority to examine whether registration requirements are met by the application and its accompanying documents. Thus, even in cases where a unregistered building applied for auction through an investigation by an execution officer is deemed a building subject to auction and the court rendered a decision to commence compulsory auction and entrusted registration of compulsory auction decision to a registrar, a registrar has the authority to examine whether registration requirements are met by the relevant commission and accompanying documents, and if the result of the examination does not coincide with the registration requirements, the commission of registration of compulsory auction decision shall be dismissed.
[2] Even in cases where registration of preservation of ownership is applied only for a part of a sectioned building which belongs to one building, registration of indication shall be applied simultaneously with the rest of the sectioned building (Article 131-2(1) of the Registration of Real Estate Act), registration of registration by entrustment shall apply mutatis mutandis to registration by application except as otherwise provided in the Act (Article 27(2) of the Registration of Real Estate Act), and registration of preservation of ownership on a sectioned building upon entrustment of registration of decision of compulsory decision of commencement of sale of unregistered buildings shall be examined as to whether registration of indication as well as part of the sectioned building is capable of registration on the rest of the sectioned building.
[3] The case holding that an auction court's decision of compulsory commencement of auction on a part of a building belonging to one building, which is in the process of construction, entrusted the registration of the decision, along with a survey report and field photograph, etc., and where some floors, other than the objects of auction, among the buildings at the time, are not yet divided into partitions, so it is difficult to be deemed a sectioned building under the Act on Ownership and Management of Condominium Buildings, even if the construction of a building can be seen as completed by itself, the remaining buildings, which are subject to the entrustment of the above decision, are not equipped with the registration ability, and therefore the above request is dismissed by an agency, etc.
[1] Article 55 of the Registration of Real Estate Act / [2] Articles 27 (2), 55, and 131-2 (1) of the Registration of Real Estate Act / [3] Articles 27 (2), 55, and 131-2 (1) of the Registration of Real Estate Act, Articles 1 and 1-2 of the Act on the Ownership and Management of Aggregate Buildings
[1] Supreme Court Order 94Ma535 dated January 20, 1995 (Gong1995Sang, 1115)
Sino Construction Co., Ltd.
Uibu District Court Order 2005Ra195 dated July 28, 2006
The reappeal is dismissed.
Although there is no substantive authority to examine whether a registration officer conforms to the legal relationship under substantive law, but there is a formal review authority to examine whether a building meets the registration requirements by an application, its attached documents, and registry (see Supreme Court Order 94Ma535, Jan. 20, 1995, etc.). Thus, in cases where the court judged that an unregistered building for which a request for auction was made through an investigation by an execution officer is subject to auction and requested the registration of compulsory commencement order to the registrar, the registration officer has the authority to examine whether the registration requirements are met by the relevant entrustment and attached documents, and if the registration requirements are not satisfied as a result of such examination, the registration of compulsory commencement order shall be dismissed. Meanwhile, even in cases where an application for registration of preservation of ownership is filed with respect to only a part of a sectioned building belonging to one building, the registration of indication of the remaining sectioned building shall be applied at the same time (see Supreme Court Decision 94Ma535, Jan. 20, 195, etc.).
According to the records, the applicant (re-appellant) applied for a compulsory auction for each of the building of this case belonging to one building under the protocol for the conciliation of the purchase price of this case pursuant to the Seoul Central District Court 2003Gahap76839, and applied for an investigation into its structure and size pursuant to Article 81(3) of the Civil Execution Act. The court of first instance, the executing court, made a decision of compulsory commencement of real estate on June 10, 2005, and entrusted the registration of compulsory commencement of compulsory sale of each of the building of this case to the High Government Branch of the same day and the High Court of the same day along with a report on the investigation into the status of enforcement officers, field photographs, etc., and the fact that the registrar entrusted the registration of compulsory commencement of sale of the building of this case to the High Government Branch of the Seoul Central District Court 203Gahap76839 on the ground that the building of this case cannot be seen as being currently being the construction and completed. Meanwhile, according to the current status survey of enforcement officers attached to the letter of this case, it cannot be seen as being divided into one story and one story.
Therefore, the disposition of the registrar who rejected the request for the registration of the decision to commence compulsory auction on each of the sections of this case is legitimate. Thus, the decision of the court below to the same purport is justified, and there is no violation of law such as misapprehension of legal principles as alleged in the grounds
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)