[1] Whether a seller's right to claim for the transfer of ownership can be preserved by provisional registration in a case where a seller makes a separate agreement for the transfer of ownership to a seller when a sales contract is cancelled when the seller completed the registration of transfer of ownership before the purchase price is fully paid (affirmative)

[2] Whether a lessee who acquired an opposing power under the Commercial Building Lease Protection Act after a provisional registration has been made to preserve the right to claim ownership transfer registration may oppose the effect of lease against a person who made the principal registration on the basis of such provisional registration (negative)

[1] Article 3 of the Registration of Real Estate Act, Articles 105 and 548(1) of the Civil Act / [2] Articles 3 and 6(2) of the Registration of Real Estate Act, Articles 3(1) and 5(2) of the Commercial Building Lease Protection Act

[1] Supreme Court Decision 81Meu110 delivered on November 23, 1982 (Gong1983, 196)

Plaintiff 1 and one other (Attorney Kim Jin-jin, Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on August 1, 201

Seoul High Court Decision 2006Na88960 decided March 14, 2007

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. In a case where a seller entered into a sale contract with a buyer before receiving the full payment of the purchase price, and the buyer entered into a separate agreement between the buyer and the buyer to make the registration of ownership transfer on the subject matter of sale, the seller may request the buyer to implement the procedure by itself, and the seller's right to claim the registration of ownership transfer is also a claim for the transfer of ownership. Thus, the seller's right to claim the registration of ownership transfer can be preserved by provisional registration under Article 3 of the Registration of Real Estate Act (see Supreme Court Decision 81Meu110, Nov. 23, 1982).

In addition, if a person who has made a provisional registration for the purpose of preserving the right to claim ownership transfer registration has completed the principal registration on the basis of the provisional registration, it brings about the effect of the interim disposition on the basis of the priority preservation of the provisional registration. Therefore, only after the provisional registration is completed, the lessee of a commercial building who has acquired the opposing power under the Commercial Building Lease Protection Act may not oppose the person who has made the principal registration on the basis of the provisional

2. According to the reasoning of the judgment below, the court below held that since the plaintiff 2 had already completed provisional registration for the purpose of preserving the right to claim ownership transfer registration under the agreement with the non-party prior to the acquisition of opposing power under the Commercial Building Lease Protection Act with respect to the land for factory in this case and factory in this case, the plaintiff 2's right to claim ownership transfer registration based on the above provisional registration cannot be asserted against the plaintiffs who had completed the ownership transfer registration based on the above provisional registration, and further, the plaintiff 2's right to claim ownership transfer registration was generated by the agreement between the non-party and the non-party, and is not directly related to the provisions of the proviso of Article 548 (1) of the Civil Act

In light of the records, all of the above measures of the court below are just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the effect of priority preservation of provisional registration or opposing power and cancellation of contract under the Commercial Building Lease Protection Act, as

3. Therefore, all appeals are dismissed, 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 Kim Young-ran (Presiding Justice)