[1] In a case where the registration of seizure due to the delinquency in payment of national taxes and local taxes is completed after the provisional registration of preservation of the right to claim ownership transfer, and the principal registration based on the above provisional registration is made, the examination scope of a registrar for the ex officio cancellation of the seizure registration

[2] The case reversing the judgment of the court below that the national tax attachment registration cannot be cancelled ex officio, regardless of the highest order under the substantive law of the national tax attachment registration and provisional registration, where a substantial dispute arises as to the provisional registration of security, without examining the statutory due date of national tax and the post-registration date of provisional registration, even though only supporting documents showing the payment deadline for the national tax other than the pertinent tax were submitted

[1] Where the attachment registration due to the delinquency in payment of national taxes and local taxes is completed after the provisional registration of preservation of ownership transfer claim, and the principal registration based on the above provisional registration is made, a registrar shall notify the person having the authority to collect delinquent local taxes of the cancellation of provisional registration under Article 175 of the Registration of Real Estate Act, and where there is a substantial dispute between interested parties as to whether the provisional registration is a security, whether the provisional registration is a security, and whether the seizure registration due to the delinquency in payment of national taxes or local taxes is prior to the provisional registration, or whether the statutory due date of national taxes or local taxes is prior to the provisional registration is prior to the provisional registration, it is reasonable to view that the registrar should ex officio revoke the attachment registration of national taxes or local taxes, similar to other intermediate registrations completed after the provisional registration. However, even if the registrar must examine the above examination for the cancellation of the provisional registration of national taxes or local taxes, it is not valid to determine whether the provisional registration is subject to Article 1 of the National Tax Security Act or the provisional registration under Article 3 of the National Tax Security Act.

[2] The case reversing the judgment of the court below that the national tax attachment registration cannot be cancelled ex officio regardless of the highest order under the substantive law of the national tax attachment registration and provisional registration, where a substantial dispute arises as to the provisional registration of security without examining the statutory due date of national tax and the post-registration date of provisional registration, although only supporting documents showing the payment deadline for the national tax other than the pertinent tax, which is not the pertinent

[1] Article 175 of the Registration of Real Estate Act, Articles 1, 3, and 4 of the Provisional Registration Security Act / [2] Article 175 of the Registration of Real Estate Act, Articles 1, 3, and 4 of the Provisional Registration Security Act, Article 35 (2) of the Framework Act on National Taxes

[1] Supreme Court Order 91Ma675 delivered on March 18, 1992 (Gong1992, 1381) Supreme Court Order 98Ma133 delivered on October 7, 1998 (Gong1998Ha, 2821)

Appellant 1 and 41 others (Law Firm Han-soo et al., Counsel for the plaintiff-appellant)

Subu District Court Order 2006Ra27 dated May 10, 2006

The part of the order of the court below concerning the provisional disposition registration, the registration of seizure in arrears of the Republic of Korea, and the registration of the decision on compulsory commencement of auction shall be reversed, and that part of the case shall be remanded to the Panel Division of the District Court.

The grounds of reappeal are examined.

1. A provisional registration to preserve a claim for ownership transfer has the effect of preserving the priority order in a real right change in a real estate, and in a case where the principal registration of ownership transfer based on the provisional registration has been completed, interim registration, such as seizure, provisional seizure, provisional disposition, etc., which was effected after the provisional registration, becomes practically null and void due to the order of registration due to the acquisition of the principal registration by the person holding the provisional registration and the sponsability of a real right, and thus, a registrar shall, in principle, cancel the above intermediate registration ex officio in accordance with Articles 175 through 177 and 55 subparagraph 2 of the Registration of Real Estate Act (see Supreme Court en banc Order 4294Du75, Dec. 24, 1962; Supreme Court Order 79Ma222, Sept. 27, 1979; Supreme Court Order 81Ma140, Oct. 6, 1981).

In addition, in principle, a registrar does not have the authority to conduct a formal examination as to whether the application for registration is appropriate by the application and its accompanying documents and register, such as whether the documents necessary for the application for registration have been submitted in accordance with the Registration of Real Estate Act, and whether the submitted documents have been formally authentic, and there is no authority to conduct a substantive examination as to whether the application for registration conforms to the legal relationship under substantive law (see, e.g., Supreme Court Order 66Ma108, Jul. 25, 196; Supreme Court Order 90Ma72, Oct. 29, 199; Supreme Court Order 2003Da13048, Feb. 25, 2005).

However, Article 35(2) of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same) provides that “in case where any property is seized subject to provisional registration (including provisional registration; hereinafter the same shall apply) for the purpose of preserving a claim for transfer of right on the basis of a pre-contract for payment in kind, in which a person liable for tax payment is the person liable for registration and any default is the condition precedent, or for the purpose of other similar security, if the principal registration on the basis of the provisional registration is effectuated after the seizure, the person holding a right to the provisional registration may not claim a right based on the provisional registration against a disposition for arrears to the property: Provided, That the same shall not apply to property provisionally registered before the statutory due date of national tax or additional dues (excluding national tax and additional dues imposed on the property), and Article 31(4) of the Local Tax Act provides that the above provision has the same purport. Where national tax or local tax is registered until the provisional registration is completed, even if national tax or local tax is registered before the provisional registration is registered as national tax or local tax under the provisional registration.

As such, the pertinent provision of the former Framework Act on National Taxes and the Local Tax Act provides that the right holder of a provisional registration falling under the above provision cannot assert his/her right against the disposition on default on the property. However, in order to ensure the effectiveness of the above provision in the registration procedure, it is necessary to make a registrar to examine whether there is a high priority in substantive law between the provisional registration and the registration on seizure to the extent necessary. However, in principle, the right of examination of a registrar under the Registration of Real Estate Act is limited to that of a formal one, the scope

Therefore, in cases where the attachment registration due to the delinquency in payment of national taxes and local taxes is completed after the provisional registration of preservation of ownership transfer claim, and the principal registration based on the above provisional registration is made, the registrar shall notify the delinquent disposition authority ex officio under Article 175 of the Registration of Real Estate Act, and where the delinquent disposition authority submits explanatory materials as to the fact that the relevant provisional registration is a provisional registration of security, the tax imposed on the relevant property, or the statutory due date of national taxes or local taxes is prior to the provisional registration date, and where there is a substantial dispute between interested parties as to whether the provisional registration is a security, and whether the attachment registration due to the delinquency in payment of national taxes or local taxes takes precedence over the provisional registration, the attachment registration of national taxes or local taxes may not be ex officio, regardless of the principal registration authority's assertion based on the provisional registration (see Supreme Court Order 91Ma675, Mar. 18, 1992; Supreme Court Order 98Ma1333, Oct. 7, 1998; and in cases where such explanatory materials are not submitted, the other interim attachment registration should be completed.

However, even if a registrar conducts the above examination to cancel the registration of seizure of national or local taxes, it is difficult to secure the propriety of supporting documents because the principal registration is based on provisional registration to which the Provisional Registration Security Act applies pursuant to Article 1 of the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”), and it is not necessary to examine whether the principal registration is valid after liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, and to determine the ex officio cancellation of the registration of national or local taxes depending on the result thereof. Such examination is apparent in the legal text, unless there is an examination scheduled under the above Framework Act on National Taxes or the Local Tax Act. Furthermore, even though the factual evidence that a person having the right to collect delinquent taxes can submit is limited, it is difficult to secure the appropriateness of supporting documents because the principal registration authority does not guarantee the right of objection, or the probative value or credibility of such supporting materials, etc. within the relevant examination procedure. Nevertheless, examining the validity of the principal registration by only such supporting materials can not be determined to be inconsistent with the purport of the Registration of Real Estate Act to ensure the appropriateness and stability of the registration of local taxes.

The Supreme Court Order 89Ma640 Decided November 2, 1989 and other decisions or decisions of the Supreme Court different from these decisions are to be modified to the extent that they are inconsistent with the opinion of this decision, even if the registration of national tax attachment was based on a disposition on default on national taxes which cannot be preferred for provisional registration upon the expiration of one year from the date of provisional registration, even if the registration of national tax attachment was based on a disposition on default on national taxes which cannot be priority for provisional registration due to the expiration of one year from the date of provisional registration.

2. A. First of all, the part regarding the registration of provisional disposition, the registration of seizure of the Republic of Korea, and the registration of the decision to commence compulsory auction is examined.

According to the reasoning of the order of the court below, the provisional disposition registration in the name of Nonparty 1, the registration of national tax attachment in the Republic of Korea, the registration of local tax attachment in the Guri City, the registration of the decision of compulsory commencement of auction filed by Nonparty 2, and the registration of the decision of compulsory commencement of auction filed by Nonparty 2, in the future of the re-appellants, the principal registration based on the provisional registration in this case was completed, and the registrar, after the above registration, submitted explanatory materials that the provisional registration in this case was the provisional registration in the Republic of Korea and the notification of ex officio

In light of the above legal principles, the above provisional disposition registration and the registration of decision on commencement of compulsory auction shall be cancelled ex officio regardless of whether the provisional registration of this case is the provisional registration of security, and in the case of national tax which is not the pertinent tax, the decision on whether the provisional registration is ex officio after the line between the statutory due date

Nevertheless, in this case where the materials submitted by the Republic of Korea present only the payment deadline instead of the statutory due date, the court below erred by misapprehending the legal principles on the ex officio cancellation of interim registration on the principal registration based on the provisional registration, or by failing to exhaust all necessary deliberations, and thereby affecting the conclusion of the judgment, where there is a substantial dispute as to the provisional registration of this case without examining the statutory due date of the above national tax and the post-date of the provisional registration of this case, the registrar cannot cancel the registration of provisional disposition and the registration of the decision on compulsory commencement of auction, and the national tax seizure registration cannot be ex officio regardless of the highest order

B. Next, the part of the order of the court below regarding the registration of seizure of old-si for arrears is examined.

According to the reasoning of the order of the court below, the local tax imposed on each of the real estate in this case includes the property tax imposed on the real estate in this case.

In light of the above legal principles, since the registrar cannot ex officio the registration of local tax seizure of the Guri-si, the judgment of the court below on this part is just, and there is no violation of the Constitution, laws, orders, or rules that affected the judgment due to the misapprehension of legal principles as to the formal review right and presumption of registration by the registrar, the ex officio cancellation of interim registration in the principal registration based on provisional registration, or violation of the rules of evidence,

3. Therefore, the part of the order of the court below regarding the provisional disposition registration, the registration of a disposition on default by the Republic of Korea, and the registration of a decision on compulsory commencement of auction shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining reappeals shall be dismissed, respectively,

Chief Justice Lee Yong-hoon (Presiding Justice)