2019Da280375 Cancellation of the right to collateral security

Plaintiff:

Attorney Lee Sung-chul, Counsel for the plaintiff-appellant

Defendant

Attorney Lee Chang-soo, Counsel for the defendant-appellant

Seoul Eastern District Court Decision 2019Na20421 Decided September 18, 2019

January 30, 2020

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. The Plaintiff, who duly completed the registration of share ownership transfer of the instant real estate, sought the transfer of the right to claim the payment of the instant deposit and its notification to the Defendant on the premise that he was in a position to invoke the completion of prescription on his secured obligation of the instant right to collateral security. Accordingly, the Defendant asserted to the effect that the registration of share ownership transfer in the name of the Plaintiff was based on the provisional registration in the name of Nonparty 1, which was completed with respect to the instant real estate, and the principal registration based on the registration based thereon, and that the said provisional registration is null and void due to a false declaration of intent made in collusion between Nonparty 1 and Nonparty 2. As such, the Plaintiff cannot be deemed to have lawfully acquired share ownership or

Based on the facts stated in its reasoning, the lower court determined that the Plaintiff constitutes a person who has a new legal interest based on the legal relationship formed by a provisional registration based on a false declaration of intent made in collusion between Nonparty 1 and Nonparty 2, and thus, constitutes a bona fide third party, and thus, the Defendant cannot assert that the declaration of intent, which caused the provisional registration, is null and void. In so determining, the lower court rejected the Defendant

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. In principle, the expression of false declaration in collusion with the other party is null and void and any person may assert the invalidity thereof. However, with respect to a third party in good faith who has established a de facto new legal interest based on the legal relationship formed by a false declaration as a person other than the party of the false indication and the general successor, not only the party of the false declaration but also any person who has entered into a de facto new legal interest can not oppose the invalidation of the false declaration. The purport of

Based on these, it is to protect a person who enters a legal relationship with a unique legal interest by a separate legal cause. Therefore, the scope of a third party should be grasped according to whether a person has a new legal interest based on a false representation act rather than formally based on the legal relationship (see Supreme Court Decision 9Da51258 delivered on July 6, 200, etc.).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed. (1) After completing the registration of ownership transfer on the instant real estate on December 24, 1986 due to sale and purchase, Nonparty 2 completed the registration of ownership transfer on the grounds of the instant real estate, and the Defendant completed the registration of ownership creation on July 22, 1998 with the maximum debt amount of KRW 30 million.

2) Around July 1998, Nonparty 2 (around July 1998, Nonparty 2) filed a provisional registration on February 22, 1999 with respect to the right to claim ownership transfer registration, the grounds for registration of which is the purchase and sale reservation, against Nonparty 1, who had a usual friendship for the management of the real estate of this case, as the United States.

3) However, with the knowledge that Nonparty 2 does not return to the Republic of Korea, Nonparty 1 filed a lawsuit against Nonparty 2 on May 14, 2007 against the Seoul Eastern District Court 2007Kadan27411, which sought implementation of the principal registration based on the provisional registration of the instant real estate, and the said lawsuit was initiated by service by public notice, and the judgment was handed down on July 25, 2007 with the winning of Nonparty 1, which became final and conclusive on August 15, 2007. Nonparty 1 was issued a delivery certificate and confirmation certificate of the instant judgment on August 30, 207, respectively.

4) Afterwards, Nonparty 2 knew of the above judgment, and filed an appeal for late payment by Seoul Eastern District Court 2008Na2571 on March 5, 2008. On March 18, 2009, the above court revoked the judgment of the first instance and rendered a ruling dismissing Nonparty 1’s claim on the ground that the pre-contract, which was the basis of the above provisional registration, was null and void by a false declaration of intent made between Nonparty 1 and Nonparty 2. The above judgment became final and conclusive on April 9, 2009. However, Nonparty 1 purchased the ownership transfer registration on January 15, 2015 under one’s own name on the ground of the final judgment, and completed the registration of transfer of ownership transfer on the real estate under one’s own name on August 15, 2015. Nonparty 3, as the husband of Nonparty 1, was aware that most of the share in this case was sold to Nonparty 1 under one’s own name on the ground of property division.

C. According to the above facts, it is reasonable to view that the main registration of Nonparty 1 with respect to the instant real estate is not based on the false declaration of intent itself, which is a provisional registration established with respect to the establishment of a false provisional registration between Nonparty 2 and Nonparty 1, but rather on the basis of the above judgment of the first instance, which became retroactively null and void after the revocation of the false declaration of intent made in collusion with the appellate court’s judgment after the revocation of the false declaration of intent made in collusion. Accordingly, it is reasonable to deem that the registration of invalidity of cause unilaterally completed based on the judgment of the appellate court, which became retroactively null and void. Accordingly, the registration of transfer of each share, which is successively completed until the Plaintiff, including

Furthermore, provisional registration made by Nonparty 2 and Nonparty 1 with a false declaration of intention conspired, and Nonparty 3

As seen earlier, since the principal registration of invalidity of the cause unilaterally completed by Nonparty 1 is an intermediate registration between the transfer registration of ownership in the name of Nonparty 1, it is evaluated that the transfer registration of ownership in the name of Nonparty 3, which was completed based on the said registration, was separated from the provisional registration in the name of Nonparty 1. In addition, the act of establishing provisional registration and the establishment of principal registration is clearly distinguishable from the act of establishing provisional registration in the name of Nonparty 3 and the person who completed the transfer registration of ownership in the name of Nonparty 3 and that it is merely the principal registration in the name of Nonparty 1, not the provisional registration in the name of Nonparty 1 but the principal registration in the name of Nonparty 1.

The provisional registration of the name itself cannot be deemed as the status of a third party having a new legal interest. This is the result of Nonparty 2’s subsequent appeal, despite the fact that the false declaration of intention, which was conspired between Nonparty 2 and Nonparty 1, was voluntarily withdrawn, the principal registration of Nonparty 1 was completed while the provisional registration of Nonparty 2, the external appearance of which was not removed, was remaining without removal.

would not be different in that case.

D. Nevertheless, the lower court rejected the Defendant’s assertion that the Plaintiff was not in a position to lawfully acquire ownership of the instant real estate or to invoke the completion of prescription, solely on the grounds as indicated in its reasoning, deeming that the Plaintiff constituted a third party of a false declaration of intent that was conspired.

In so determining, the lower court erred by misapprehending the legal doctrine regarding a third party in a false declaration of intent in collusion, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Jo Hee-de

Justices Min You-sook

Justices Lee In-bok and Lee Dong-won