The effect of transfer under the Income Tax Act is cancelled where a real estate, the provisional registration of which has been completed, has been successful and completed but is cancelled.

As long as it is clear that the ownership of the real estate for the purpose of the provisional registration has been transferred to the successful bidder after the provisional registration for preserving the right to claim a transfer of ownership was completed, and the ownership of the real estate was transferred to the successful bidder, and even if the principal registration based on the provisional registration was completed, even if the ownership has been lost, the other party who has transferred the real estate under the Income Tax Act shall be the successful bidder who has acquired the ownership due to the successful bid, and as the ownership transfer registration in the name of the successful bidder was cancelled ex officio due to the principal registration based on the provisional registration, the validity of such transfer shall not be retroactively extinguished

Article 27 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994); Article 53 (1) 1 of the Enforcement Decree of the Income Tax Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han-chul, Attorneys Lee Jae-soo et al., Counsel for plaintiff-appellant)

[Defendant-Appellee] Plaintiff 1 et al.

Head of the Tax Office;

Seoul High Court Decision 93Gu35591 delivered on June 30, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The effect of provisional registration for preserving the right to claim a transfer of ownership is not to prohibit or restrict the disposal of real estate against the owner of real estate until the principal registration based on provisional registration is completed, so the owner of real estate can dispose of real estate effectively, and a third party can acquire real estate effectively through sale, auction, etc. Provided, That if the principal registration based on provisional registration is completed, the registration of transfer of ownership, etc. in conflict with the principal registration completed after provisional registration due to the priority preservation effect of provisional registration shall lose its effect and ex officio is cancelled by the registration public official. However, the effect of transfer of ownership by sale and auction between the owner of real estate and the third party shall not be retroactively extinguished.

As in this case, since the provisional registration for preserving the right to claim ownership transfer was completed after the provisional registration for preserving the right to claim ownership transfer was completed, and the ownership of the real estate for the purpose was transferred to the successful bidder, and even if the principal registration based on the above provisional registration was completed, it is clear that the ownership has been acquired once the ownership of the real estate was lost, the other party (the assignee) who transferred the real estate for the purpose by the successful bidder shall acquire the ownership due to the auction, and since the registration of transfer of ownership in the name of successful bidder was cancelled ex officio by the registered public official due to the principal registration based on the above provisional registration, the validity of the transfer shall not be retroactively extinguished. Therefore, the court below is just in holding that the non-party's ownership of the real estate was transferred on the date of acquisition of ownership in the compulsory auction procedure by the plaintiff who is the owner, and there is no error of law by misunderstanding the legal principles as to the intention and time of transfer or failing to make a deliberation

Therefore, the appeal is dismissed and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)