[1] Whether a lawsuit claiming cancellation of registration against a person who is not a responsible for registration is legitimate (negative)

[2] Where a supplementary registration for the transfer of chonsegwon has been made, the other party to the claim for cancellation of the registration for the establishment of chonsegwon (=transferee)

[3] Where there is a legal interest in a lawsuit seeking cancellation of only additional registration of the right of lease on a deposit basis

[4] The presumption of transfer of ownership that has been filed under the name of the former owner after his death (affirmative with qualification)

[5] The case holding that in a case where Gap, a successful bidder of each real estate, completed the registration of creation of a right to lease on a deposit basis, and completed the additional registration of change of a right to lease on a deposit basis for each real estate after completing the registration of establishment of a right to lease on a deposit basis under Gap's own name, Byung's principal registration of establishment of a right to lease on a deposit basis was completed due to lending each real estate under Eul's name; Eul's principal registration of change of a right to lease on a deposit basis was completed due to Eul's death; Byung's additional registration of change of a right to lease on a deposit basis was sought against Eul's heir and Jung corporation without standing, the right to seek cancellation of the right to lease on a deposit basis against Eul is illegal since it was against the non-standing party; and the part of the additional registration of change of a right to lease on a deposit basis among the claims against Jung corporation is illegal as there is no interest in lawsuit; but it cannot be deemed that the registration of principal registration of change of a right to lease on a deposit basis is invalid, but it cannot be deemed as a violation or likely to violate Gap's mortgage

[1] A lawsuit seeking the cancellation of registration against a person liable for registration, namely, a person who is not a person who loses his/her right or is not a person who is not a person who loses his/her right due to registration in the form of the registry, is an unlawful lawsuit against a person who is not a party.

[2] The additional registration by the transfer of chonsegwon is merely to specify the succession of the right by the registration of the existing chonsegwon in the register, and as such, as the registration does not result in a new right by the registration, the application for the cancellation registration of chonsegwon is sufficient against the transferee only, and the transferor is not qualified as the defendant in the registration of the cancellation.

[3] The supplementary registration is dependent on the previous main registration, and it is not a new registration that is separate from the main registration. Thus, even if the main registration is sought to be cancelled, if the main registration is cancelled, it shall be cancelled ex officio. Thus, a claim for cancellation of the additional registration shall be made in an unlawful claim without any benefit in the protection of rights. However, in a case where only the reason for transfer of the right to lease on a deposit basis is invalidated or cancelled or cancelled, the main registration of the right to lease on a deposit basis is valid, which is, in other cases where a dispute over the validity of the additional registration is brought about only on the ground that the additional registration of the right to lease on a deposit basis exists only on the premise that the main registration of the right to lease on a deposit basis is valid, there is a need to

[4] In cases where inheritance has commenced for a person liable for registration while the former owner had already filed an application under his/her name after the death of the former owner, the transfer of ownership shall be deemed to be a registration invalidation, except in cases where the heir files an application for registration if the decedent is living, or where special circumstances are recognized such as the death of the principal or his/her agent before the registration is completed after the receipt of the application for registration, and thus there is no room to acknowledge the presumption of registration. Therefore, the person claiming the validity of registration filed under his/her name after the application for registration was made shall assert and prove that

[5] The case holding that Gap's seeking cancellation of the right of lease on the ground that it is inappropriate to seek cancellation of the right of lease on the ground that it is against Eul's non-party-qualified person's right of lease on the ground that the main registration of the right of lease on the deposit basis and the additional registration of the right of lease on the deposit basis of the right of lease on the deposit basis are inappropriate because it is against Eul's non-party-qualified person, and it is not possible to bring an action for cancellation of the right of lease on the deposit basis of the right of lease on the deposit basis of the right of lease on the deposit basis that the principal registration of the right of lease on the deposit basis of the right of lease on the deposit basis and the additional registration of the right of lease on the right of lease on the deposit basis of the right of lease on the deposit basis were made after completing the registration of the right of lease on the deposit basis under Gap's own interest in the lawsuit, but the registration of the right of lease on the deposit basis has not yet existed, but there is no possibility of infringement of the right of lease on the deposit.

[1] Article 186 of the Civil Act / [2] Article 186 of the Civil Act / [3] Article 248 of the Civil Procedure Act / [4] Article 186 of the Civil Act / [5] Article 248 of the Civil Procedure Act, Article 1

[1] Supreme Court Decision 93Da39225 delivered on February 25, 1994 (Gong1994Sang, 1093) / [2] Supreme Court Decision 95Da7550 delivered on May 26, 1995 (Gong195Ha, 2262) / [3] Supreme Court Decision 95Da7550 delivered on May 26, 1995 (Gong1995Ha, 2262), Supreme Court Decision 200Da19526 delivered on October 10, 200 (Gong200Ha, 2302), Supreme Court Decision 200Da15412, 15429 delivered on June 10, 2005 (Gong200Da15429 delivered on June 26, 200, No. 2005Ha, 2304) / [304Ha decided March 4, 2004]

Daegu Livestock Industry Cooperatives (Attorney Lee Sung-chul, Counsel for defendant-appellant)

Defendant 1 and one other (Law Firm Jungwon, Attorneys Kang Young-gu, Counsel for the defendant-appellant)

April 27, 2011

1. Among the plaintiff's lawsuit against the defendant 1 and the lawsuit against the defendant agricultural village, the part of the claim for cancellation of the registration of chonsegwon completed by the Daegu District Court No. 27623 on June 28, 2006 as to each real estate listed in the separate sheet shall be dismissed, respectively.

2. The plaintiff's remaining claims against the defendant agricultural village are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

With respect to each of the real estate listed in the separate sheet (hereinafter “each of the real estate in this case”), the Defendants performed the procedure for cancellation of the registration of lease on a deposit basis, which was completed by the Daegu District Court, the Daegu District Court, the Daegu District Court, the 48487 of May 19, 199, the registration of establishment of lease on a deposit basis, which was completed by the receipt No. 27623 of June 28, 2006, the registration of change of lease on a deposit basis, which was completed by the receipt No. 617 of January 5, 2007, the registration of change of lease on a deposit basis completed by the receipt No. 26108 of July 6, 207,

1. Facts of recognition;

A. On May 19, 199, the non-party 1 purchased each of the instant real estate in his name and completed the registration of transfer of ownership under his name, and on the same day, the non-party 2 completed the registration of creation of chonsegwon with the content of the lease deposit amounting to KRW 1.35 billion on each of the said real estate, its duration from May 19, 199 to May 18, 200 (hereinafter “registration of creation of chonsegwon”).

B. After that, the registration of the change of chonsegwon was completed on December 24, 2001 with respect to each of the instant real estate in addition to the additional registration of the change of chonsegwon, which is made from May 19, 2000 to May 18, 2008, and the additional registration of the change of chonsegwon with respect to the lease deposit amount as of June 28, 2006 and the duration period from May 19, 2000 to December 31, 2026 (hereinafter “the registration of change of chonsegwon”).

C. On June 28, 2006, the Plaintiff extended a loan of KRW 1.88 billion in the name of Nonparty 1, and completed the registration of establishment of a neighboring mortgage in the name of Nonparty 1 (hereinafter “registration of establishment of a neighboring mortgage”) with respect to each real estate of this case, the maximum debt amount of KRW 2.45 billion, and the amount of KRW 2.5 billion in the name of Nonparty 1.

D. Nonparty 2, who was the person having the right to lease of this case, died on July 31, 2006. On January 5, 2007, the main registration of the change of the right to lease on a deposit basis (hereinafter “registration of change of the right to lease on a deposit basis”) was completed on January 4, 2007 due to the contract for change of the right to lease on a deposit basis (an increase of the right to lease on a deposit basis from KRW 100 million to KRW 590 million), and on July 6, 2007, each of the above real estate was completed on July 30, 2006 by the contract for transfer as of June 30, 2006.

E. Meanwhile, on November 7, 2007, upon the Plaintiff’s voluntary auction application, the decision to commence the auction of each of the instant real estate was made on November 7, 2007 (Tgu District Court No. 2007Ma32788), and the present voluntary auction procedure is in progress, and Nonparty 3, 4, 5, 6, 7, 7, 8 and Defendant 1 are co-inheritors of Nonparty 2.

[Reasons for Recognition] The entry of Gap evidence Nos. 1-1-8 and 2-2, and the purport of the whole pleadings

2. The plaintiff's assertion

Since the registration of creation of chonsegwon in this case, ① registration of change of chonsegwon, and registration of change of chonsegwon (hereinafter “registration of creation of chonsegwon in this case”) have the following grounds for invalidation, the Plaintiff seeks to cancel the registration of establishment of chonsegwon in this case by exercising the right to claim exclusion of interference based on the right to collateral security in this case. Defendant 1 is the heir of Nonparty 2, who was the person having chonsegwon on the actual right to the right to lease in this case or on the registry, and Defendant farming cooperative is the person having chonsegwon in the name of the person having chonsegwon in the name of the

① Defendant 1 completed the registration of the establishment of the instant chonsegwon in collusion with Nonparty 2, a mother Nonparty 2 and Nonparty 1, who is Nonparty 1, in preparation for the case where an auction on each of the instant real estate was commenced after the successful bid for each of the instant real estate in the name of Nonparty 1. As such, it constitutes a false conspiracy and thus constitutes a false conspiracy, and thus, is null and void. The registration of change of the right to lease on a deposit basis and the registration of change of

② Even if the registration of the establishment of chonsegwon of this case was not made by false agreement, pursuant to Article 312(1)1 of the Civil Act, even if the registration of the establishment of chonsegwon of this case was not made by false agreement, the chonsegwon of this case was calculated from May 19, 200, which is the last point of time when the duration has been changed, and the duration has expired on May 18, 2010 after the expiration of the duration. Thus, the registration of the establishment of chonsegwon of this case, etc. shall be

③ Finally, the instant case ② Registration of change of chonsegwon and registration of change of chonsegwon are invalid since Nonparty 2, who is the person having chonsegwon, applied for registration of change of chonsegwon and registration of change of chonsegwon in his name after the death of July 31, 2006.

3. Determination

A. Determination on the legitimacy of the lawsuit against Defendant 1

1) Claims based on the premise that Defendant 1 is the actual right holder

A lawsuit seeking the cancellation of registration against a person who is not a person liable for registration, i.e., the person who loses his/her right by registration or who is not a person who is not a person (registration titleholder or his/her general successor) in the form of the registry, is unlawful against a person who is not a party (see Supreme Court Decision 93Da39225, Feb. 25, 1994, etc.). Since Article 186 of the Civil Act provides for the requirement of establishment regarding a real right change in real right, a person who is a real right can not acquire his/her right without completing registration. Thus, as seen earlier, as seen earlier, Defendant 1 is not a registered titleholder, such as the registration of the creation of a chonsegwon in this case, and thus, the lawsuit claiming cancellation of the registration of the creation of a chonsegwon in this case,

2) The assertion that Defendant 1 is Nonparty 2’s inheritor

A) The part demanding cancellation of the registration of chonsegwon of this case

The supplementary registration of the right to lease on a deposit basis is merely to specify the succession of the right by the registration of the right to lease on a deposit basis. The application for the cancellation registration of the right to lease on a deposit basis as long as the right does not arise by such registration is not a new right by the registration is sufficient for the assignee, and the transferor does not have the standing to be the defendant in the application for the cancellation registration (see Supreme Court Decision 95Da7550 delivered on May 26, 1995, etc.). As to this case, the health room for the case and the cancellation of the registration of the right to lease on a deposit basis for the defendant 1 who is not the heir of the non-party 2, who is not the person having the right to lease on a deposit basis, should seek the cancellation of the registration of the right

B) Claim for cancellation of the registration of lease on a deposit basis and lease on a deposit basis

The supplementary registration is dependent on the existing main registration, which forms a whole of the main registration, and is not a new registration separate from the main registration. Therefore, even if the main registration is sought to cancel it, if the main registration is cancelled without any separate request for cancellation, it shall be cancelled ex officio. Thus, a request for cancellation of the additional registration is an unlawful claim without any benefit in the protection of rights (see Supreme Court Decisions 95Da7550, May 26, 1995; 200Da19526, Oct. 10, 200; 200Da19526, Oct. 10, 200). In other words, where only the cause of transfer of the right to lease on a deposit basis is invalidated, cancelled or cancelled, it is exceptionally necessary to seek cancellation of the additional registration on the ground that the main registration of the right to lease on a deposit basis is valid only on the ground that the additional registration of the right to lease on a deposit basis becomes invalid (see Supreme Court Decision 200Da5429, Jun. 12, 2005).

In principle, it is unlawful to seek cancellation of the additional registration against Defendant 1, who is the assignee of the right to lease on a deposit basis, without any interest in filing a lawsuit to seek cancellation of the registration of the right to lease on a deposit basis and the registration of the right to lease on a deposit basis on the premise that the principal registration itself is valid exceptionally on the ground that there is no ground for invalidation only in the additional registration on the premise that the principal registration itself is valid.

In the meantime, the fact that the registration of change of chonsegwon was completed not by additional registration but by principal registration is as seen earlier. However, at present, seeking the cancellation of the registration of change of chonsegwon against Defendant 1, the transferor Nonparty 2, the heir of Nonparty 2, rather than against the Defendant farming association, the nominal owner of the instant right to lease on a deposit basis, is also unlawful, since it is against a person who is not qualified

3) Sub-decisions

Therefore, the Plaintiff’s lawsuit against Defendant 1 is all unlawful.

B. Determination as to the claim against the defendant farming cooperatives

1) Determination on the main defense of this case

A) The defendant farming cooperative sought cancellation of the registration of the establishment of chonsegwon when the registration of the establishment of chonsegwon is invalidated as the original cause, and even if the supplementary registration does not seek cancellation separately, it is sufficient for the plaintiff to seek cancellation registration of the establishment of chonsegwon, and accordingly, to seek cancellation registration of the right to lease on a deposit basis as well as cancellation registration of the right to lease on a deposit basis as the right to lease on a deposit basis as the right to lease on a deposit basis as the right to lease on a deposit basis is unlawful.

B) First, as to the claim for cancellation of the right to lease on a deposit basis (1) of this case, the assertion that the term of the right to lease on a deposit basis of this case expired is not invalid only with the supplementary registration of change of the right to lease on a deposit basis (1) of this case. Moreover, if the registration of creation of the right to lease on a deposit basis is cancelled upon acceptance of the plaintiff's argument, the additional registration of change of the right to lease on

C) Next, as to the claim for cancellation of the registration of chonsegwon and the registration of cancellation of chonsegwon, the Plaintiff asserted that the registration of the instant chonsegwon was null and void since the registration was made after the death of Nonparty 2, who is the person having chonsegwon. Meanwhile, the instant registration of change of chonsegwon was completed by means of the principal registration rather than the additional registration, and as seen earlier, the Plaintiff’s interest in the lawsuit against the Defendant farming association to seek cancellation of the registration of chonsegwon and the registration of cancellation of chonsegwon is recognized.

D) Therefore, although the principal safety defense regarding the claim for cancellation of the right to lease on a deposit basis is well-grounded, the main defense about the claim for cancellation of the right to lease on a deposit basis and the right to lease on a deposit basis is without merit.

2) Determination on the merits

A) The assertion of false conspiracy

Since it is presumed that the registration of the establishment of chonsegwon in this case was completed on the basis of legitimate grounds for registration, the plaintiff bears the burden of proof as to the fact that the registration was completed without any grounds for registration. Each statement of Gap 1 through 5 (including a provisional number) and the testimony of non-party 9 of the witness alone is insufficient to regard the registration of the establishment of chonsegwon in this case as the registration of the establishment of chonsegwon in this case based on false conspiracy, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion is without merit.

B) Claim for extinguishment of the right to lease on a deposit basis

The duration of chonsegwon is not more than 10 years (Article 312(1) of the Civil Act), and the right of real right of real right of the chonsegwon is naturally extinguished without cancellation of the registration of the right of lease on a deposit basis if the duration of chonsegwon expires. However, additional registration of the right of lease on a deposit basis or of the right of lease on a deposit basis can be said to maintain the function of security right that guarantees preferential repayment of the right of

According to the above facts, although the duration of the right to lease on a deposit basis of the registry is specified from May 19, 200 to December 31, 2026, the term of the right to lease on a deposit basis is reduced to 10 years, and the term of the right to lease on a deposit basis has already expired. However, since the registration of the right to lease on a deposit basis has a secured function that guarantees the preferential repayment of the right to lease on a deposit basis, the above argument by the plaintiff that the registration of the right to lease on a deposit basis of the expiration of the term of the right to lease on a deposit basis shall not be accepted

C) Claim for cancellation of the registration of chonsegwon of this case

The registration of transfer of ownership that has been filed in the name of the former owner after the death of the former owner has already existed, but where the predecessor is living in the case where the inheritance commenced with the person liable for registration during the absence of the application for registration, the registration he applied for shall be filed by the heir, or where special circumstances are recognized such as the case where the principal or his agent dies before the registration is completed after the receipt of the application for registration, it shall be deemed that the registration becomes void and there is no room to acknowledge the presumption of the registration. Therefore, the person who claims the validity of registration that has been filed in the name of the deceased and made in the name of the deceased shall assert and prove that there was such special circumstances as above (see Supreme Court Decision 2003Da31

The fact that the registration of the right to lease on a deposit basis of this case was completed after the non-party 2 died on July 31, 2006 is as mentioned above. However, according to the records in Gap evidence 1-1-8, Eul evidence 10-1-2 and 2, the non-party 2 transferred the right to lease on a deposit basis of this case to the defendant farming association on June 30, 2006 but failed to complete the registration of the right to lease on a deposit basis, the non-party 2's heir died on July 31, 2006, and the non-party 2's heir completed the registration of the right to lease on a deposit basis on July 6, 2007, after the non-party 2's death. According to the above facts, the registration of the right to lease on a deposit basis of this case had already existed, but the registration of the right to lease on a deposit basis of this case could not be viewed as the special reason for invalidation if the non-party 2 had already commenced the registration as the person liable for registration.

Therefore, the plaintiff's assertion on this part is without merit.

(2) Claim for cancellation of registration of chonsegwon change

Since Non-party 2 died on July 31, 2006, the fact that the registration of change of the right to lease on a deposit basis of this case was completed is as seen earlier. While there was a cause for change of the right to lease on a deposit basis of the above right to lease on a deposit basis, there was no evidence to acknowledge that there was a special circumstance such as the death of the person liable for registration or his agent before completing the registration after receiving the application for registration, the registration of change of the right to lease on a deposit basis of this case was invalid.

In regard to this, the defendant farming association's above ② Since the registration of change of chonsegwon is subordinate to the above right to collateral security, it cannot be the exercise of the right to claim exclusion of disturbance based on the above right to collateral security. Thus, since the registration of change of chonsegwon is not an additional registration of the right to collateral security but an additional registration of the right to collateral security, the fact that the registration of change of chonsegwon was completed lower than the registered establishment of the right to collateral security of this case is not an additional registration of the right to collateral security of this case. ② The above registration of change of chonsegwon cannot be set up against the right to collateral security of this case, and the above registration of change of chonsegwon was completed lower than the registered establishment of the right to collateral security of this case.

Therefore, the plaintiff's assertion on the premise that the registered lease on a deposit basis could infringe or infringe on the right to collateral security of this case is without merit.

4. Conclusion

Therefore, among lawsuits against the plaintiff against the defendant 1 and lawsuits against the defendant farming association, the part of the plaintiff's claim for cancellation of the right to lease on a deposit basis as unlawful and dismissed, and the remaining claim against the defendant farming association is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] List: omitted

Judges Kim Jong-ju (Presiding Judge)

1) The duration of chonsegwon under Article 312(1) of the Civil Act shall not exceed 10 years. If the period agreed upon by the parties exceeds 10 years, it shall be shortened to 10 years.