In a case where it is necessary to complete a cancellation registration for the registration of closure for the realization of rights by a genuine right holder, whether there is a benefit in legal action to seek implementation of the procedure for cancellation registration, etc. for the registration to be transferred and recorded together with the registration necessary for the restoration of the cancelled right holder’s registration and the registration to be transferred (affirmative)

Where a registrar transfers only the currently effective registration among the matters registered in the registration record pursuant to Article 33 of the Registration of Real Estate Act to a new registration record and closes the previous registration record, the registration remaining in the closed registration record (hereinafter referred to as "closed registration") without transfer to a new registration record is invalid as the current registration record, and the closed registration record cannot record a new registration record. Therefore, there is no benefit in filing a lawsuit seeking the implementation of the procedure for the restoration registration of cancellation against the closed registration itself.

However, Article 33 of the Registration of Real Estate Act provides that only the currently effective registration among the matters entered in the registration record shall be transferred to a new registration record, taking into account the convenience of the registration practice, and thus, it shall not be difficult for the genuine right holder to remedy his/her rights. As such, it is reasonable to uniformly deny the benefit of a lawsuit seeking the implementation of the procedure for the cancellation of registration on the ground that the registration remains as a closed registration even if it is necessary to complete the registration for the realization of rights of the true right holder, even if it is necessary to complete the registration for the realization of rights of the true right holder, as the cancellation registration is transferred only to a new registration record and closed the previous registration record, which appears to be effective as at the present time when the registration is cancelled unlawfully.

Therefore, in such a case, a lawsuit is brought to seek implementation of the procedure for cancellation registration, etc. of a right holder whose registration was cancelled if the registration was not cancelled unlawfully, and the registration to be transferred to the current registration record was required to restore the registration and the registration to be recorded together. In this case, where the judgment ordering implementation of the procedure for cancellation registration, etc. becomes final and conclusive, and where all the registration incompatible with the cancellation registration, among the registration already recorded in the current registration record, was cancelled, the registrar should have transferred the registration cancelled at the time of initial transfer to the new registration record and the registration necessary for restoring the registration, etc., even though it was omitted, it shall be deemed that the registration was omitted at the time of the initial transfer to the new registration record, and then the registration was transferred to the current registration record by its authority pursuant to Article 32 of the Registration of Real Estate Act,

Therefore, a lawsuit seeking the implementation of the procedure for cancellation registration, etc. may be recognized as a lawsuit, not subject to closure registration itself, but to the registration of a right holder whose registration was cancelled and whose registration had been transferred to the current registration record if it had not been cancelled unlawfully. This legal doctrine also applies to the registration that remains in the registration record of land before division, but has not been transferred to the registration record of land using a new registration record after division.

Article 248 of the Civil Procedure Act / [Institution of Lawsuit] Articles 32 and 33 of the Registration of Real Estate Act

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

Korea Asset Management Corporation (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Defendant 1 and four others (Attorneys Park Jong-chul et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2010Na2204 decided April 15, 201

Of the part of the judgment of the court below against Defendant 1, the part as to the distribution area of approximately 6,52.4 square meters in Chungcheongnam-si, Chungcheongnam-si, Chungcheongnam-do, and the part as to Defendant U.S.D. Co., Ltd. and H.D., are reversed, and this part of the case is remanded to Daejeon High Court. The remainder of the appeal by Defendant 1 and the appeal by Defendant U.S. Construction Co., Ltd. and Defendant 5 are dismissed. Of the costs of appeal, the part as to the appeal by Defendant U.S. Construction Co., Ltd. and Defendant 5 are borne by Defendant U.S

1. Ex officio determination as to the legitimacy of the part of the claim for cancellation registration against Defendant 1

A. As to Defendant 1 in this case, the Plaintiff: (a) 2,943.22/6,552.4 square meters of ( Address 1 omitted) 6,52.4 square meters (hereinafter “instant land”); and (b) 19,787.5 square meters of ( Address 2 omitted); (c) 1,679.87/19,787.5 square meters of ( Address 2 omitted); and (d) 1,679.87/19,787.5 square meters of the instant land (hereinafter “instant land”); (e) on June 29, 1991, the competent Daejeon District Court’s official branch office, received No. 12342, Jun. 29, 1991; and (e) on July 29, 1993, the Plaintiff seeks to cancel the ownership transfer registration of each of the instant land and the ownership transfer registration of each of the instant land (hereinafter “ownership transfer registration of each of the instant land”).

B. Where a registrar transfers only the currently effective registration among the matters registered in the registration record pursuant to Article 33 of the Registration of Real Estate Act to a new registration record and closes the previous registration record, the registration that remains in the closed registration record without being transferred to a new registration record (hereinafter “closed registration”) is invalid as the current registration record, and the closed registration record cannot be recorded with a new registration record. Thus, there is no benefit in filing a lawsuit seeking the implementation of the procedure for the registration for the recovery of cancellation against the closed registration itself (see Supreme Court Decision 80Da223, Oct. 27, 1980, etc.).

However, Article 33 of the Registration of Real Estate Act provides that only the currently effective registration among the matters entered in the registration record shall be transferred to a new registration record, taking into account the convenience of the registration practice, and thus, it shall not be difficult for the genuine right holder to remedy his/her rights. As such, it is reasonable to uniformly deny the benefit of a lawsuit seeking the implementation of the procedure for the restoration of registration on the ground that the registration remains as a closed registration even if it is necessary to complete the registration for the realization of rights of the true right holder, even if the registration remains as a closed registration, as the cancellation registration is transferred to a new registration record and then the cancellation registration becomes a true right holder becomes a closed registration by closing the previous registration record after being transferred to a new registration record.

Therefore, in such a case, a lawsuit is brought to seek implementation of the procedure for cancellation registration, etc. of a right holder whose registration was cancelled if the registration was not cancelled unlawfully, and a registration to be transferred to the current registration record was required to restore the registration and that to be recorded together. In this case, where the judgment ordering implementation of the procedure for cancellation registration, etc. becomes final and conclusive, and where all the registration incompatible with the cancellation registration among the registrations already recorded in the current registration record was cancelled, it is reasonable to deem that the registrar omitted the registration cancelled at the time of initial transfer to the new registration record and the registration necessary for restoring the registration, etc. thereof, even though it had been recorded together with the registration cancelled at the time of the initial transfer to the new registration record, it is reasonable to deem that the registration officer can execute the cancellation registration, etc. based on the final and conclusive judgment.

Therefore, a lawsuit seeking the implementation of the procedure for cancellation registration, etc. may be recognized as a lawsuit, not subject to closure registration itself, but to the registration of a right holder whose registration was cancelled or recorded in the current registration record if it was not unlawfully cancelled, and the registration to be transferred and recorded together as necessary for restoring the registration. This legal doctrine also applies to the registration of land which remains in the registration record of land before division in the process of land division, but which has not been transferred to the registration record of land which uses a new registration record after division.

C. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Plaintiff: (a) was not obligated to remove the ownership transfer registration of the instant 10 square meters on the 6th 4th 7th m2, 7th m2; (b) was not obligated to remove the ownership transfer registration of the instant 4th m2; (c) was owned by Nonparty 1 and Defendant 1 on the 6th m26th m26th m2, 7th 1997 m2; and (d) was not obligated to remove the ownership transfer registration of the instant 19,631/260 m2, 609 m2626 m2; and (d) was subject to the registration of the ownership transfer of the instant 19,026m26 m2, 197 m26 m2, 197 m2, 1972.

D. Examining these factual relations in light of the legal principles as seen earlier, the part on the claim for cancellation registration against Defendant 1 among the instant lawsuit is not seeking implementation of the procedure for cancellation registration as to the registration itself which remains in the registration record of 26,609 square meters in forests ( Address 3 omitted) and forest land of 19,026 square meters, which is the land prior to subdivision, but rather seeking implementation of the procedure for cancellation registration as to the ownership transfer registration of each of the instant land, which would have been recorded on the registration record of each of the instant land if it was not unlawfully cancelled. As such, the benefit of the lawsuit can be recognized.

2. Judgment on the grounds of appeal

A. As to Defendant 1’s ground of appeal on the purport that the part of Defendant 1’s claim for cancellation registration against Defendant 1 is unlawful as the land substitution registration becomes null and void.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, ① as a project implementer for the development project of the collective facility district of this case, the association of 2 collective facility district of this case (hereinafter “instant replotting disposition”) seven parcels (hereinafter “seven parcels prior to replotting”) including ( Address 5 omitted), paddy field ( Address 7 omitted), ( Address 8 omitted), forest land ( Address 9 omitted), forest land ( Address 10 omitted), forest land ( Address 11 omitted), forest land and forest land) were substituted with each of the land of this case (hereinafter “seven parcels prior to replotting disposition”) were jointly owned according to the ratio of the previous area among the total area of seven parcels prior to replotting (hereinafter “instant replotting disposition”), and ② as a creditor against Defendant 1, etc., Defendant 1, etc., filed an application for the replotting disposition of this case with Nonparty 2, who kept the right to claim for the replotting commission against the project implementer as the owner of the seven parcels prior to replotting, and the remaining land substitution registration of this case was omitted as the landowner’s co-ownership disposition of this case (hereinafter “the replotting disposition of this case”).

The registration according to a replotting disposition shall be applied or commissioned by the project implementer, and the owner of the land before replotting cannot apply for or commission the registration of replotting in subrogation of the project implementer. Thus, the registration of replotting in this case applied by Nonparty 2 in subrogation of the development project association of the second collective facility district in the same school affairs as the project implementer is completed illegally

However, the registration record of each of the lands of this case is consistent with the substantive legal relationship according to the replotting disposition of this case since the total co-ownership shares of each of the owners of seven parcels prior to replotting were registered as the same as the shares stipulated in the replotting disposition of this case. Meanwhile, the registration record of each of the lands of this case is not wholly seven parcels prior to replotting, but only one parcel for the lands of this case ( Address 1 omitted) and six parcels for the lands of this case. However, in full view of the contents of the replotting disposition of this case and the application form and attached documents submitted at the time of the application for the replotting registration of this case, the replotting registration of each of the lands of this case can be deemed to have been filed and otherwise registered. Furthermore, if the co-ownership shares of each owner of each of the lands of this case were determined based on the previous ownership area of the seven parcels prior to replotting as seen earlier, it is reasonable to view the previous replotting registration record of each of the lands of this case as the object of the replotting registration of this case and the previous parcel of land of this case.

Therefore, although the land substitution registration of this case was completed illegally in the course of the procedure, it is valid as a registration consistent with the substantive legal relationship according to the land substitution disposition of this case. Thus, this part of the ground of appeal on the premise that the land substitution registration of this case is invalid is without merit

B. As to the remainder of Defendant 1’s grounds of appeal and each of the grounds of appeal by Defendant U.S.C., U.S. Construction Co., Ltd., M., Teaching Investment Co., Ltd.

1) The lower court determined to the effect that the cancellation of the ownership transfer registration of this case was null and void in relation to the Plaintiff, on the grounds that Nonparty 1 and Defendant 1 did not submit the Plaintiff’s written consent or a certified copy of the written decision substituted therefor, and that the termination or invalidity of the sales contract concluded between Nonparty 1 and Defendant 1 cannot be asserted to the Plaintiff, the Plaintiff did not have a substantive legal consent obligation to cancel the ownership transfer registration of this case, and that the registration of cancellation of ownership transfer of this case was not implicitly ratified by the Plaintiff.

In light of the relevant legal principles and records, the above fact-finding and determination by the court below are justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the

2) The reasoning of the lower judgment and the evidence duly admitted by the lower court revealed that the registration of ownership transfer was completed with respect to the forest (road address 5 omitted), i.e., (road address 10 omitted), forest (road address 11 omitted), and forest (road address 11 omitted), other than the forest (road address 5 omitted), and that the said four lots of land was substituted with each of the instant land as well as the said four lots of land. However, on the ground that the circumstance is the same, it cannot be said that there is no benefit in the lawsuit to seek implementation of the procedure for registration of cancellation of ownership transfer registration of this case only for the co-ownership of forest (road 5 omitted), forest (road 6 omitted), or forest (road 6 omitted), among each of the instant land. Therefore, Defendant 1’s ground of appeal disputing this is without merit.

3) However, in order to determine the scope of the registration of cancellation, the lower court calculated shares in the shares in each of the instant lands, which were subject to the instant disposition of land substitution if the ownership transfer had been treated as the owner, and calculated by means of seeking shares in ( Address 5 omitted) woodland or forest land ( Address 6 omitted) forest or forest land, for which the Plaintiff sought cancellation of the ownership transfer registration among the shares in the ownership of the mountain and mountain village tourist hotel, which had been recorded on the registration record of each of the instant lands. Thus, Defendant 1’s ground of appeal disputing the scope of the registration of cancellation was otherwise calculated, since Defendant 1’s ground of appeal disputing the scope of the registration of cancellation was with merit.

However, even according to Defendant 1’s assertion, if the shares subject to registration of cancellation are re-calculated by the above method, the shares calculated again with respect to the land ( Address 2 omitted) of this case are larger than the shares recognized by the court below. Thus, in this case where the Plaintiff did not appeal, the scope of reversal is limited to the part concerning the land ( Address 1 omitted) of this case among the part against Defendant 1 in the judgment below.

In addition, as long as the part of the lower judgment against Defendant 1 on the instant land among the part against Defendant 1 is reversed, the part on Defendant U. S.C. and H. H. Investment Co., Ltd., which is premised on Defendant 1’s duty to register the cancellation of cancellation should also be reversed for the same reason.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 concerning the land of this case and the part against Defendant U.S.C. and H.D. Investment Co., Ltd. concerning this case is reversed, and this part of the case is remanded to the court below. The remaining appeal by Defendant 1 and the appeal by Defendant U.S. Construction Co., Ltd. and Defendant 5 are dismissed. The costs of appeal by Defendant U.S. Construction Co., Ltd. and Defendant 5 are assessed against Defendant U.S. Construction Co. and Defendant 5. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)