[1] Legal relations in cases where a supplementary registration prior to the provisional registration is completed according to an utilization agreement of the provisional registration of the claim for ownership transfer registration

[2] Whether a creditor who exercises a creditor's subrogation right can assert to a third-party obligor an independent reason based on the independent circumstance between himself/herself and the third-party obligor (negative)

[3] In a case where a creditor sought cancellation of provisional registration on behalf of a debtor against a third party debtor who completed the additional registration prior to the provisional registration from the debtor who is the owner of the real estate according to an agreement on the utilization of the right to claim provisional registration for ownership transfer registration, the case holding that the creditor's assertion that the real estate was provisionally seized prior to the provisional registration is not permitted because it is about the ground that the

[1] In a case where a provisional registration has been completed for preserving a right to claim ownership transfer registration based on the pre-sale of real estate, if the right to complete the pre-sale expires, such provisional registration shall lose its effect and be cancelled. However, if the owner of the real estate concludes a new trade pre-sale agreement with a third party, agrees to use the provisional registration having already become invalid for preserving a right to claim ownership transfer registration based thereon, and actually completes the additional registration prior to such provisional registration, a third party who has completed the additional registration prior to such provisional registration may at any time oppose the claim for cancellation of the provisional registration by asserting the agreement on the utilization of the above provisional registration against the owner of the real estate. However, the third party who had an interest in the register prior to such provisional registration cannot assert the validity of such provisional registration on the ground of the agreement on the utilization

[2] Since a creditor's subrogation right exercises his/her right against a third party debtor, the third party debtor can oppose all defense grounds that he/she has against the debtor. However, the creditor can only assert such grounds within the scope of grounds that he/she can assert, but he/she cannot assert the grounds based on the independent circumstance between himself/herself and the third party debtor.

[3] In a case where a creditor sought cancellation of provisional registration on behalf of a debtor against a third party debtor who completed the additional registration prior to such provisional registration by agreement on the diversion of provisional registration for preserving the claim for null and void ownership transfer registration, the case holding that the creditor's assertion that the provisional registration was made before such additional registration was not permitted because it was about the grounds which the creditor himself/herself had against the third party debtor, not the debtor.

[1] Article 186 of the Civil Act / [2] Article 404 (1) of the Civil Act / [3] Articles 186 and 404 (1) of the Civil Act

[1] Supreme Court Decision 97Da56242 delivered on March 24, 1998 (Gong1998Sang, 1143) Supreme Court Decision 2001Da2846 delivered on December 6, 2002 (Gong2003Sang, 302)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Democratic, Attorneys Jeong Byung-hun et al., Counsel for the defendant-appellant)

Defendant (Law Firm Barun, Attorneys Cho Ho-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na43497 decided Dec. 11, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Where a provisional registration has been made to preserve a right to claim ownership transfer registration on the basis of a pre-sale of real estate, if the right to complete the purchase and sale expires, such provisional registration shall lose its effect and be cancelled. However, if the owner of such real estate concludes a new pre-sale agreement with a third party to use the provisional registration which has already ceased to have effect for preserving a right to claim ownership transfer registration based thereon, and the owner of such real estate has made an additional registration prior to such provisional registration, the third party to whom the provisional registration had already been registered may at any time assert the agreement on the utilization of the above provisional registration with the owner of the real estate to oppose the claim for cancellation of the provisional registration by asserting that the said provisional registration has been invalidated. However, with respect to a person who had an interest in the register prior to the additional registration prior to such provisional registration transfer, the validity of such provisional registration cannot be asserted on the ground of the agreement on the utilization of the above provisional registration (see Supreme Court Decision 97Da5624

On the other hand, since the obligee's subrogation right exercises the obligee's right against the third obligor, the third obligor can oppose the obligee with all defense grounds that the obligor has against the obligor, but the obligee is only able to oppose the obligee within the scope of grounds that the obligor can assert, and it is not possible to assert the reasons based on the independent circumstance between himself and the third obligor.

2. Based on the evidence adopted, the court below found the following facts: on April 26, 1991, the co-defendant 1 entered into a bond insurance contract with each bondholder, the insured amount of KRW 1,450,000,000, and the period of insurance from April 25, 1991 to April 25, 194 (hereinafter “instant guarantee insurance contract”); on the same day, Co-defendant 5 of the court of first instance jointly and severally guaranteed all the obligations, such as indemnity, to be borne by Co-Defendant 1 of the court of first instance by the Plaintiff pursuant to the instant guarantee insurance contract; thereafter, the Plaintiff fulfilled its guaranteed obligation; thereafter, the amount of indemnity bond pursuant thereto reaches KRW 1,50,00,00,00, and the Non-Party, Co-Defendant 2 had already entered into a provisional registration under the name of the non-Party 1’s right to demand sale and purchase (hereinafter “the Non-Party 1’s right to claim sale and purchase of the instant real estate”).

Furthermore, the court below accepted the Plaintiff’s primary claim seeking cancellation of the provisional registration of this case by subrogationing Co-Defendant 5 of the court of first instance on the part of the co-defendant 5 of the court of first instance on the ground that the right to complete the purchase and sale reservation pursuant to the instant provisional registration was extinguished upon the expiration of the exclusion period of 10 years from the date of reservation, and thus, the provisional registration of this case was invalidated, but the Defendant agreed to divert the provisional registration of this case between Co-Defendant 5 of the court of first instance and Co-Defendant 5 of the court of first instance, and thus, the Defendant may oppose the Plaintiff seeking cancellation of the instant provisional registration by subrogation of Co-Defendant 5 of the court of first instance on the part of the Co-Defendant 5 of the court of first instance on the ground that the use of the registration was allowed only if there was no third party having interest in the registration before the agreement to exploit the registration was reached.

3. However, examining the facts acknowledged by the court below in light of the legal principles as seen earlier, the defendant may oppose against the co-defendant 5 of the court of first instance by agreement on the utilization of the above provisional registration, and may oppose against the plaintiff seeking the cancellation of the provisional registration of this case in subrogation of co-defendant 5 of the court of first instance. Furthermore, since the plaintiff provisionally seized the real estate of this case before the provisional registration was completed according to the above utilization agreement, the defendant cannot oppose the above provisional registration utilization agreement within the scope. However, the plaintiff seeking the cancellation of the provisional registration of this case by subrogation of Co-defendant 5 of the court of first instance on behalf of Co-defendant 5 of the court of first instance, who is not the co-defendant 5 of the court of first instance, cannot assert the above reasons.

Nevertheless, the court below accepted the plaintiff's main claim of this case on the ground that the defendant cannot set up against the plaintiff by an agreement on the utilization of provisional registration under different premise. Thus, the judgment below is erroneous in the misapprehension of legal principles as to the utilization of invalid registration, which affected the conclusion of the judgment, or it is inconsistent with the reasoning of the judgment. The ground of appeal on this point has merit.

4. Therefore, without examining the remainder of the grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)