[부동산소유권이전등기등][집13(1)민,080]
Whether the right to claim for the original registration is extinguished following the special agreement for the intermediate registration omitted and the change of rights.
In the case of a transfer of rights, registration is more effective to appear in the process of the change of rights, and in the case of a transfer of rights, the right to claim for registration occurs automatically from the fact of the change of rights. Therefore, even if a special agreement was made between the parties to make a registration through an interim omission registration, it is only convenient method, and the right to claim for registration following the change of the original registration does not become extinct,
Oilsung (Attorney Kim Jong-chul, Counsel for the defendant-appellant)
Kim Gyeong-hwan et al.
Seoul High Court Decision 63Na801 delivered on October 13, 1964
The part of the original judgment dismissing the Plaintiff’s appeal against Defendant Kim Gung, limited amusement, and Lee Jong-hee is reversed, and that part of the case is remanded to the Seoul High Court.
The Plaintiff’s appeal against Defendant Han-il Bank and Defendant Korea is dismissed, and the costs of appeal against said Defendants are assessed against the Plaintiff.
The first ground for appeal by the plaintiff's agent is examined.
According to the judgment of the court below, on the one hand, the court below held that on the other hand, it is the fact that on the one hand, the Plaintiff had not paid interest on returning the installments to the members of the fraternity who had already received the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of the payment of KRW 1,374,270, less the amount of the payment of the payment of KRW 1,374,270, which was recognized as above. The court below held that on September 7, 1964, the Plaintiff could recognize the fact that on the other hand, the payment of the payment of the payment of the payment of the payment of the payment of KRW 16,050,00,000,000,000,000,0000,000 won, which was already made before the Defendant Lee Jong-Un, who did not reach the validity of the payment of the payment of the payment of the payment of the payment of the payment of the payment.
However, if the customs, which is the fact that the plaintiff does not pay interest on the installment that the plaintiff, who is the owner of the household, did not pay to the defendant Lee Jong-ok, is the fact, the plaintiff argued the validity of the payment in substitution as claimed by the defendant Lee Jong-ok, and submitted to the court a letter of claim for the cancellation registration procedure of the ownership transfer registration, and the defendant Lee Jong-young did not have any act of promptly attaching the plaintiff with respect to the claim for the refund in installments, and there is no legal basis to regard that the plaintiff's repayment in this case is not legitimate because the court below did not add the damages for delay, and there is no legal ground to regard that the plaintiff's repayment deposit in this case is not legitimate, and it is reasonable to discuss this point.
The second ground of appeal is examined.
According to the judgment of the court below, the court below held that the plaintiff, defendant Kim Jong-hee, and defendant Kim Jong-hee did not have any assertion and proof that the agreement was cancelled, and that the defendant Kim Jong-hee sold the real estate in this case to the defendant limited Byung-hee, and that even if the defendant restricted-hee again sold it to the plaintiff, the plaintiff cannot directly file a claim for the registration of transfer against the defendant limited Byung-hee, and that the plaintiff cannot claim the registration of transfer to the defendant in subrogation of the defendant restricted-hee, but it cannot claim the registration of transfer to the defendant in lieu of the defendant limited-hee.
However, in the case of the transfer of rights, registration is more effective in the process of changing the rights, and the right to claim for registration is naturally generated from the fact of the change of rights. Therefore, even if the parties agree to make a special agreement through the interim omission registration, it is only convenient method and it cannot be deemed that the right to claim for registration is extinguished due to the original change of rights. However, the court below's decision as at the end is not erroneous in the misapprehension of legal principles that rejected the plaintiff's claim for limited amusement and Kim Jong-sung as at the end of the judgment of the court below.
The third ground of appeal is examined.
However, on the basis of the facts duly confirmed by evidence, the court below concluded that the registration of ownership transfer in the name of the defendant Lee Jong-dong was passed through the concession security to secure the plaintiff's obligation to repay the fraternity dues to the defendant Lee Jong-dong. Thus, in external relations, the court below recognized that the ownership of the real estate was held by the defendant Lee Jong-dong and decided that the registration of establishment of the right to collateral security and mortgage was lawful. Therefore, on the premise of facts different from the facts recognized by the court below, the court below cannot be employed to discuss that the real estate was subject to the judgment, considering that the defendant Lee Jong-dong was not the owner of the real estate,
It is so decided as per Disposition by the assent of all participating judges in accordance with Article 406 (1) or 395, 384, or 89 of the Civil Procedure Act for the reasons above.
[Judgment of the Supreme Court (Presiding Judge) Mag-Jak Park Mag-gu