2011Ra23 Filing an objection against a disposition by a registrar

1. - 1 (4)

Seoul Dongdaemun-gu

2. Demotion (five);

Seoul Gangnam-gu Dong

Seoul Northern District Court Order 2009Mo9 dated June 16, 2009

May 19, 2011

1. Of the decision of the first instance court, the revocation of the decision of the lower court and the ex officio cancellation of registration shall be revoked.

2. (a) On June 2, 2008, the Dobong District Court of Seoul Northern District on the real estate listed in the separate sheet, the registration of provisional disposition of receipt No. 12, and the above registry office on each real estate listed in the separate sheet.

7. The registration of the decision to commence compulsory auction of receipt of No. 28, the registration of the provisional attachment of receipt No. 20, Oct. 20, 2008, and the registration of seizure of receipt No. 19, Dec. 19, 2008, the registration officer of the above registry shall revoke the decision of acceptance on the objection of cancellation ex officio on April 22, 2009, with respect to the registration of seizure of receipt No. 21, Dec. 19, 2008.

B. The registry office of the above registry office on June 2, 2008 with respect to the real estate listed in the annexed list No. 12 of the above registry office on June 2, 2008, and the above registry office on each real estate listed in the annexed list.

7. The registration of the decision on compulsory commencement of auction by compulsory enforcement of No. 28, the registration of provisional seizure of receipt No. 20, Oct. 20, 2008, and the registration of ex officio cancellation on the registration of seizure of receipt No. 19, Dec. 19, 2008

3. The appellant's remaining appeal shall be dismissed;

1. Basic facts

According to the records of this case, the following facts are recognized.

A. Each real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") is owned by the plaintiff. On May 19, 2008, the provisional registration of the right to claim transfer of ownership was completed on May 16, 2008 under the name of the applicant for the purchase and sale of the real estate of this case (hereinafter referred to as the "provisional registration of this case").

B. Subsequent to the registration of provisional disposition on June 2, 2008 with respect to the real estate listed in the separate sheet (this Court No. 2008Kadan3826, June 2008) 1, 2008.

24. On December 19, 2008, the attachment registration for the disposition on default was completed on the real estate listed in the attached list No. 1, 3, 2008 (No. 19, Dec. 19, 2008), respectively.

C. On March 19, 2009, the applicants filed an application for ownership transfer registration based on the above provisional registration with respect to the instant real estate on March 19, 2009, and the principal registration of 1/2 shares was completed in the name of the applicants as the Dobong Registry of the Court on March 19, 2009.

D. Meanwhile, when the registrar of the above registry completed the principal registration based on the provisional registration as above with respect to the real estate in this case, the registrar of the above registry notified ex officio cancellation on each of the above registrations to the head of the Do salary office, the head of the Dongdaemun District Tax Office, the head of the Dongdaemun District Tax Office, and the head of the Gangnambuk District Tax Office, which had been completed prior

E. Accordingly, the above provisional registration is a provisional registration for security, and the principal registration was made without undergoing the liquidation procedure, and there was a decision of compulsory commencement of auction prior to the payment of liquidation money, and thus, the above provisional attachment, provisional disposition, and the registration of compulsory commencement of auction was made to the effect that the registration of compulsory commencement of auction is not subject to ex officio. The head of the Dobong District Tax Office, the head of the Dongdaemun District Tax Office, the head of the Dongdaemun District Tax Office, and the head of Gangnambuk District Tax Office made a statement of objection to the purport that the above provisional registration is a provisional registration as security provisional registration, and as long as the statutory period of seizure registration due to the disposition on default is prior to the establishment of the above provisional registration, the above provisional registration is not subject to ex officio cancellation. The above registry office, etc. accepted the above objection and made a decision of acceptance on the above objection

2. Determination

(a) Scope of intermediate registration to be cancelled ex officio at the time of principal registration on the basis of provisional registration, and examination scope of registrars;

A provisional registration for preserving a claim for transfer of ownership has the effect of preserving the priority order in the change of real rights in a real right in a real estate, so if the principal registration of transfer of ownership based on such provisional registration has been completed, interim registration, such as seizure, provisional seizure, provisional disposition, etc., conducted after such provisional registration, will substantially lose its validity due to the order of registration due to the acquisition of the principal registration by a person holding a provisional registration and the sponsability of a real right, so in principle, a registrar shall cancel the above intermediate registration ex officio pursuant to Articles 175 through 177 of the Registration of Real Estate Act and Article 55 subparagraph 2 of the Registration of Real Estate Act. In principle, in relation to an application for registration, the registrar has no authority to examine whether the application for registration is submitted in writing necessary for the application for registration under the Registration of Real Estate Act, and whether the submitted document is formally authentic, and there is no authority to examine whether it conforms

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 provisionally registered (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 to pay taxes is responsible for registration and the 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 seized 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 the 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 purport is the same. If the provisional registration is completed between national tax or local tax and national tax under the National Tax Act, even if national tax or local tax is registered before the provisional registration is made.

As such, the pertinent provision of the former Framework Act on National Taxes and the Local Tax Act provides that a 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 secure effectiveness of the above provision in the registration procedure, it is necessary to enable a registrar to examine whether the right to review is superior under the substantive law between the provisional registration and the registration on seizure to the extent necessary. However, in principle, the right to review of a registrar under the Registration of Real Estate Act is limited to the formal form. Therefore, in cases where a seizure registration is completed due to default of national taxes and local taxes after the provisional registration on the preservation of the right to request transfer of ownership and the provisional registration is made based on the above provisional registration, the registrar shall notify the person who has the right to disposition on default of ownership ex officio pursuant to Article 175 of the Registration of Real Estate Act of the provisional registration, and if the right to disposition on default is a tax imposed on the property concerned or the national tax or local tax is prior to the provisional registration date, the registrar shall submit explanatory materials as to whether the provisional registration is a security or local tax, and if any dispute arises.

However, even if a registrar conducts the above examination in order to cancel the registration of seizure of national or local taxes, it is not necessary to examine whether 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 referred to as the "Provisional Registration Security Security Act"), and whether the procedures for liquidation prescribed in Articles 3 and 4 of the Provisional Registration Security Act are valid, and to determine whether the registration of seizure of national or local taxes is ex officio (see Supreme Court en banc Order 2006Ma571, Mar. 18, 2010).

B. Determination on the instant case

However, according to the records of this case, two registrations of seizure concerning the real estate of this case, which were conducted in accordance with the disposition on default of the Republic of Korea, among the registrations entered in the basic facts B, pursuant to the disposition on default of the Republic of Korea, among the registrations entered in the basic facts B, shall not be based on the real estate of this case itself, but after the provisional registration of this case, although the registration of seizure was made after the provisional registration of this case, the statutory due date of the tax was earlier than the day when

However, among the registrations entered in paragraph (b) of basic facts, ① the registration of opening of compulsory auction, the registration of both provisional dispositions, and the registration of provisional seizure, which have been completed for the real estate of this case, is not a registration of seizure based on the disposition on default. Since the provisional registration of this case has been completed after the provisional registration of this case, the provisional registration of this case shall be cancelled ex officio regardless of whether the provisional registration of this case is a provisional registration of security. ② Meanwhile, the registration of seizure according to the disposition on default in the Seoul Metropolitan Government, Gangnam-gu, Seoul Metropolitan Government on the real estate of paragraph (1) of the attached list is a registration of seizure according to the disposition on default. However, according to the records of this case, it can be known that the above disposition on default was a tax imposed on the real estate of this case or the legal date is prior to the date of the provisional registration of this case. The above

3. Conclusion

Therefore, the applicant's application of this case is justified within the scope of the above recognition, and the remainder of the application is dismissed as it is without merit, and the decision of the court of first instance which partially different conclusions are unfair, so the decision of the court of first instance is to be modified as ordered, and the applicant's remaining appeal is dismissed.

Judges Kim Jong-il

Effective quantity of the judge;

Judges inside the jurisdiction of judges