[1] In a case where the registration of ownership transfer based on a donation contract is made, and the right to collateral security is established, and the registration of ownership transfer is cancelled by fraudulent act, whether the third party who has interest in the registration has the interest in the lawsuit seeking the registration of ownership transfer (affirmative)

[2] In a case where a cancellation registration of transfer of ownership has been made without a written consent from a third party having interests or a certified copy of the judgment, the validity of the cancellation registration against the third party (negative)

[3] The meaning of the validity of the cancellation registration in case where a third party is required to give consent under the substantive law as to the registration of cancellation of ownership transfer, and the meaning of the "when the third party is required to give consent under the substantive law"

[4] Whether the judgment ordering cancellation registration of transfer of ownership filed only against the beneficiary by means of restitution by creditor cancellation is effective against the subsequent purchaser who acquired the right to collateral security from the beneficiary (negative)

[5] The nature of a lawsuit brought by a creditor in order to seek consent from a subsequent purchaser on the registration of cancellation of ownership transfer, following the judgment ordering the subsequent purchaser to cancel the registration of cancellation of ownership transfer which was brought against the beneficiary only by the creditor’s revocation method (affirmative) and whether the period for filing a lawsuit under Article 406(2) of the Civil Act is limited (affirmative)

[1] Where the registration of ownership transfer based on a gift contract has been made and the registration of ownership transfer has been cancelled by fraudulent act after the establishment of the right to collateral security was made based on the right to collateral security, and the registration of ownership transfer has been cancelled by illegal procedure, the right to collateral security holder is treated as valid with respect to the donation contract and the registration of ownership transfer because the revocation of fraudulent act has no relative effect only. However, considering that Article 171 of the Registration of Real Estate Act requires a written consent from a third party with an interest in the registration when the application for the registration of cancellation was filed, if the registration of ownership transfer, which serves as the basis of the right to collateral security, has been cancelled by illegal procedure, it cannot be concluded that the right to collateral security holder's right to claim the registration of ownership transfer cancellation in order to exclude the interference.

[2] According to Article 171 of the Registration of Real Estate Act, where an application for cancellation of a registration is filed and a third party who has an interest in the registration exists, the application shall be accompanied by a written consent or a certified copy of the court judgment against the third party. Thus, where a cancellation registration is made without a written consent from the interested third party, the registration of cancellation shall be interpreted as null and void in relation to the third party.

[3] In a case where a third party has a duty of consent under the substantive law as to the registration of cancellation, the third party must comply with the request for consent by the right holder, so even if the registration of cancellation has been completed without a written consent, the registration of cancellation is consistent with the substantive legal relations, and thus, is valid in relation to the third party. The "when the third party has a duty of consent under the substantive law" as to the registration of cancellation means the case where the third party's registration is null and void under the substantive law, or where the third party is an unentitled person, and thus no damage is caused even if the registration of cancellation is made.

[4] Unlike the judgment ordering cancellation of registration on the ground of invalidity of cause, the judgment ordering cancellation of ownership transfer registration on the ground of creditor’s cancellation is only relative effect. Thus, the judgment ordering cancellation of ownership transfer registration filed by creditor is not effective against the mortgagee who is not a party to the judgment. Therefore, in order for creditor to file an application for cancellation of ownership transfer registration in accordance with the judgment revoking ownership transfer registration in accordance with Article 171 of the Registration of Real Estate Act, a lawsuit against the mortgagee seeking consent from the mortgagee pursuant to Article 171 of the Registration of Real Estate Act is brought against the mortgagee. In such a case, the judgment failure of lawsuit is determined depending on whether the mortgagee may oppose the obligee under substantive law. Accordingly, barring any special circumstance, this is derived from the issue of whether the subsequent

[5] When a creditor files a lawsuit against a beneficiary for revocation of a fraudulent act, if a creditor did not file a lawsuit against a subsequent mortgagee seeking cancellation of the right to collateral security as restitution for bad faith, or seeking cancellation of the right to collateral security on the ground that the subsequent mortgagee is acting in bad faith, then he/she may file a separate lawsuit to seek cancellation of the right to collateral security registration by winning the registration by filing a lawsuit seeking acceptance of cancellation of the right to collateral security registration. Since the title of the lawsuit is based on the debtor's fraudulent act, the lawsuit is subject to limitation on the period for filing the lawsuit under Article 406 (2) of the Civil Code.

[1] Article 406 of the Civil Act, Article 171 of the Registration of Real Estate Act / [2] Article 186 of the Civil Act, Article 171 of the Registration of Real Estate Act / [3] Article 186 of the Civil Act, Article 171 of the Registration of Real Estate Act / [4] Article 406 of the Civil Act, Article 171 of the Registration of Real Estate Act / [5] Article

[2] [3] Supreme Court Decision 79Da847 delivered on July 10, 1979 (Gong1979, 12074) Supreme Court Decision 94Da5898 delivered on August 20, 1996 (Gong199Ha, 2784)

[Defendant-Appellee] Plaintiff 1 and 2 others (Attorney Kim Jong-il, Counsel for defendant-appellee)

Korea

Seoul District Court Decision 99Da10950 delivered on June 15, 2000

1. The judgment of the court below is revoked.

2. On the registration of the restoration of ownership transfer registration No. 6408 of the above court received on February 27, 1997, which was revoked and registered by the court No. 36586 on August 13, 1999 with respect to each real estate listed in the separate sheet to the senior senior citizens of the Seoul District Court, the defendant expressed his/her intention of acceptance.

3. The total costs of the lawsuit shall be borne by the defendant.

The judgment of the court below is revoked.

1. Determination on this safety defense

On the ground that the registration of cancellation of the order made with respect to each real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") by the lawsuit of this case should be registered as the registration which is invalid as a cause of the procedure, without attaching the plaintiff's written consent or a certified copy of the judgment against the third party interested in the registration, and should be registered as a result of the registration for cancellation, the defendant who made the registration of seizure after the registration for cancellation was made. However, even if the cancellation of the fraudulent act is revoked as a fraudulent act because it is only the relative effect, and even if the ownership transfer registration of this case was cancelled as a fraudulent act, the defendant has no interest in the lawsuit seeking the registration of restoration of the ownership transfer registration of this case, which was cancelled as the plaintiff who did not have any influence in exercising his right to collateral security.

However, even though the cancellation of fraudulent act has no relative effect only, it is considered that the above gift contract and the ownership transfer registration of this case against the plaintiff are valid, considering the fact that when applying for cancellation registration in Article 171 of the Registration of Real Estate Act, the consent of the third party interested in the registration is required, if the registration of ownership transfer of this case, which is the basis of the plaintiff's right to collateral security, is cancelled in accordance with illegal procedures, it cannot be concluded that the plaintiff's right to collateral security is not impeded because it is likely that the plaintiff's right to collateral security has any influence on the plaintiff's dividend or the amount of dividend, etc. due to the cancellation of the registration of ownership transfer of this case, which is the basis of the plaintiff's right to collateral security, due to the fact that the registration of ownership transfer of this case, which is the basis of the right to collateral

2. Judgment on the merits

A. Facts of recognition

The following facts are not disputed between the parties, or there is no counter-arguable evidence as a whole in each of the descriptions of Gap evidence 1 and 2 1 and 2.

(1)The original co-defendant Kim Hong was delinquent in the sum of value added tax and global income tax from December 31, 1994 to December 31, 1996, and KRW 225,950,424. On February 27, 1997, the first co-defendant Kim Hong completed the registration of transfer of ownership as described in paragraph 2 of this Article in the name of the wife on the ground of donation on February 26, 1997.

(2) Then, the Plaintiff entered into a mortgage agreement on the real estate in this case with the Goon on October 29, 1997, and completed the registration of the establishment of the mortgage with respect to the real estate in this case on November 3, 1997, with the Seoul District Court Western Branch of the Seoul District Court Decision No. 44594, Nov. 3, 1997, with the maximum debt amount of KRW 150,000,000,000,000

(3) The defendant filed a lawsuit against Gohap for revocation of fraudulent act on March 26, 1998 against Gohap, the above letter support 97Kahap19595, and revoked the gift contract of this case between Gohap and Kim Hong, which was concluded on February 26, 1997, and ordered the defendant to implement the procedure for cancellation registration of the ownership transfer transfer registration of this case, and it was dismissed by the Seoul High Court (Seoul High Court 98Na30416) but on December 23, 1998, the above judgment became final and conclusive on the ground that Gohap was the defendant's appeal (Seoul High Court 98Na30416).

(4) According to the above final judgment, in applying for the registration of cancellation of ownership transfer registration of this case as of August 13, 1999 by the above book support No. 36586, the Defendant did not attach the written consent of the Plaintiff, who is a third party with interests as a right to collateral security, or a certified copy of the judgment against it, although the above court registrar did not attach it. However, the above court registrar accepted the application for cancellation and completed the registration of cancellation of ownership transfer registration of this case.

(5) After the registration of transfer of ownership in this case was cancelled as above, the Defendant completed the registration of seizure with the owner of the right, the disposition authority, and the head of the disposition authority, on August 18, 1999, pursuant to the above Tax Claim Ordinance No. 3734, which was accepted on August 18, 199.

B. The plaintiff and the defendant's assertion

As the cause of the instant claim, the Plaintiff’s cancellation registration of the ownership transfer registration of this case is null and void as it was made without attaching the Plaintiff’s written consent, which is a third party interested in the right to collateral security. Since the attachment registration of the Defendant was made thereafter, the Defendant is a third party interested in the restoration registration of the ownership transfer registration of this case cancelled, and if Kim Hong, Kim Hong, followed the procedure for the restoration registration of the ownership transfer registration of this case, the Defendant would be placed in the position to cancel the above seizure registration as to the reason of the claim. Thus, the Plaintiff asserts that there is a duty under the substantive law to accept the registration of the ownership transfer registration of this case seeking the restoration registration of ownership transfer in subrogation of the

As to this, the defendant is presumed to be a subsequent purchaser for the revocation of a fraudulent act and bears the duty of consent under the substantive law. Therefore, the above cancellation registration shall be valid in accordance with the substantive legal relationship. Therefore, the plaintiff's claim based on the premise that the above cancellation registration is null and void is groundless.

C. Effect of the registration of cancellation of ownership transfer registration of this case

(1)Therefore, according to Article 171 of the Registration of Real Estate Act, when an application for cancellation of a registration is filed and there is a third party who has an interest in the cancellation, a written consent or a certified copy of the judgment against it shall be attached to the application. Thus, if a cancellation registration is made without attaching a written consent of the third party having an interest in the registration, the cancellation registration shall be interpreted as null and void in relation to the third party. Thus, as seen earlier, if the cancellation registration of ownership transfer registration of this case is made without attaching a written consent of the third party having an interest in the registration, the cancellation registration of this case shall be interpreted as null and void in relation to the third party.

(2)However, in a case where a third party is obliged to give consent as to the registration of cancellation under the substantive law (the third party must comply with the request for consent by the right holder), even if the registration of cancellation has been made without a written consent, it is valid in relation to the third party as it is in conformity with the substantive legal relations (see Supreme Court Decision 94Da58988 delivered on August 20, 196). The term "when the third party has the obligation to give consent as to the registration of cancellation under the substantive law" means the case where the third party's registration is null and void under the substantive law and the right is nonexistent, or where the third party is an unentitled person, and thus no damage is caused even if the registration of cancellation is made.

(3) On the other hand, we examine whether in this case the Plaintiff is obliged to accept the cancellation in substantive law.

Unlike the judgment ordering cancellation of registration on the ground of invalidity of cause, the judgment ordering cancellation of ownership transfer registration, which is a restoration method due to creditor's cancellation, is only relative effect. In this case, the judgment ordering cancellation of ownership transfer registration, which is a restoration method due to creditor's cancellation, does not affect the judgment that is not a party to the judgment

Therefore, in order for the Defendant to file an application for the cancellation registration of the ownership transfer registration of this case in accordance with the above fraudulent act cancellation judgment, the Plaintiff filed a lawsuit against the Plaintiff to seek the Plaintiff’s consent pursuant to Article 171 of the Registration of Real Estate Act. In this case, the failure of lawsuit is determined depending on whether the Plaintiff may oppose the Defendant under substantive law. In conclusion, barring any special circumstance, this is attributable to the issue of whether the subsequent purchaser, who is the subsequent purchaser, has acted in good faith or bad faith with respect to the fraudulent act of Kim Hong-Sung (the second beneficiary, who was a beneficiary, was recognized in bad faith with respect to the illegal act of Kim Hong-Seng).

Therefore, as to whether the plaintiff, a subsequent purchaser, who was provided the real estate of this case as collateral from Gohap, as a beneficiary, was maliciously guilty of Kim Hong-san's fraudulent act, the beneficiary or subsequent purchaser's bad faith in revocation of fraudulent act is presumed. The evidence Nos. 3, 4, 5-1, 5-2, and 1, 6-1, 6-1, 6-1, and the testimony of the court below's witnessness and Kim Jong-sung is insufficient to reverse the presumption of bad faith and to recognize that the plaintiff was bona fide, and there is no other evidence to prove otherwise, in making the cancellation of the ownership transfer registration of this case, the plaintiff, a third party with interest in the registration, is obligated to accept the procedure for registration of cancellation of ownership transfer of this case. However, as seen later, since the period for filing a lawsuit exceeds the period for filing a lawsuit against the plaintiff, the plaintiff cannot be held liable for consent under the substantive law.

(d) the time limit for filing the suit; and

The plaintiff asserts that the plaintiff has no obligation to accept the application for cancellation registration to the defendant, since the period for exercising the creditor's right of revocation is the period for filing a lawsuit, which is one year after the creditor becomes aware of the cause for cancellation.

The lawsuit exercising the obligee's right of revocation shall be instituted within one year from the date when the obligee becomes aware of the cause for revocation, and within five years from the date when the juristic act was committed (Article 406(2) of the Civil Act), and since such period is the period for filing a lawsuit, the court shall investigate ex officio whether such period is observed, and dismiss the lawsuit of revocation filed after the lapse of such period as illegal.

However, when the defendant files a lawsuit against the plaintiff for the cancellation of a fraudulent act against the deceased who is a beneficiary, the plaintiff did not seek the cancellation of the right to collateral security or the cancellation of the registration of transfer of ownership of this case for the reason that the plaintiff was malicious, so the defendant is entitled to file a lawsuit against the plaintiff for the cancellation of the right to collateral security and apply for the cancellation of the registration of transfer of ownership of this case by winning the plaintiff by filing a lawsuit against the plaintiff for the cancellation of the registration of transfer of ownership as a separate lawsuit against the plaintiff for the cancellation of the right to collateral security. Moreover, the lawsuit is a kind of exercise of the right to collateral security because its title is premised on Kim Hong and Cho Jong, and thus it is subject to the limitation

However, since the registration of establishment of a neighboring mortgage of this case was completed on November 3, 1997, the defendant filed a lawsuit against Gohap for revocation of a fraudulent act against Gohap, it is reasonable to deem that Gohap was aware that the act of creation of a right to collateral security of this case was a fraudulent act committed against the defendant, who is the creditor, at the latest on December 29, 1997 or on March 26, 1998, at the latest on the date when the provisional disposition for revocation was accepted, with the intention to harm the defendant, which is the creditor. Since one year has already passed from the date when the defendant had already known of the ground for revocation, the defendant cannot be deemed to bear the obligation of consent under the substantive law as long as there was no way for the plaintiff to seek approval against the plaintiff, and the plaintiff should have sought cancellation of the registration of establishment of a mortgage on behalf of the co-defendant, or that the plaintiff should have claimed compensation for damages, such as the value of the mortgage or the right to collateral transfer to the beneficiary.

E. Sub-committee

Therefore, since the cancellation registration of the ownership transfer registration of this case becomes null and void and the seizure registration of the defendant's name has been completed on the register after the above cancellation registration was made in the course of the restoration registration, the defendant is a third party interested in the restoration registration of the ownership transfer registration of this case. In addition, in the event that Kim Hong, as seen above, the defendant who acquired the right on the register after the transfer registration of this case was cancelled, is placed in the position to cancel the seizure registration of his name as to the fact that he is the defendant, who is entitled on the register after the cancellation of the ownership transfer registration of this case, is bound by the substantive law to accept the registration of the ownership transfer registration of this case which is sought by subrogation of the plaintiff.

3. Conclusion

Therefore, the defendant has a duty to express his/her intention of acceptance as stated in Paragraph 2 of the Disposition. Thus, the plaintiff's claim of this case is justified, and the judgment of the court below is unfair in conclusion, and it is so decided as per Disposition by the decision of the court below.

Judges Lee Jong-soo(Presiding Judge)