In a case where a provisional attachment registration is completed after a provisional registration is made to preserve the right to claim a transfer of ownership and the principal registration based on the above provisional registration is made, whether a registrar may cancel the provisional attachment registration ex officio (affirmative)

Article 5 subparagraph 2 of the Registration of Real Estate Act, Articles 175, 176, and 177 of the Registration of Real Estate Act

Supreme Court en banc Order 81Ma140 Delivered on October 6, 1981, 4294 dated December 24, 1962

Re-appellant

Changwon District Court Order 2008Ra235 dated November 26, 2008

The order of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of reappeal are examined.

1. On March 14, 2008, the re-appellant filed an objection against the disposition of the registrar, alleging that the registration of provisional seizure (hereinafter “registration of provisional seizure of this case”) under No. 11605, which was received on May 25, 2007, was completed after the provisional registration of transfer right claim under No. 22910, which was received on May 25, 2007 by the same registry office (hereinafter “provisional registration of this case”). Since the principal registration based on the provisional registration of this case was completed on July 15, 2008, the provisional registration of this case should be cancelled ex officio as the intermediate registration of this case, although the registrar of the same registry should be cancelled ex officio, the registrar of the same registry office accepted the objection by the person other than the applicant who is the provisional seizure holder under the provisional seizure

In response to the decision of the first instance court, the court below cited the provisional registration of this case as a pre-sale, but there is dispute as to whether the provisional registration of this case was a provisional registration of this case by submitting explanatory materials as to the fact that the grounds for registration were stated as a pre-sale, but the person other than the applicant for provisional attachment was made for the purpose of security. Thus, the court below rejected the second-appellant's objection by recognizing the provisional registration of this case as the provisional registration of priority preservation

2. However, we cannot agree with the judgment of the court below.

A provisional registration for preserving a claim for transfer of ownership has the effect of preserving priority in a change in a real right to a real estate. Therefore, in a case where the principal registration of transfer of ownership based on such provisional registration has been completed, the registration of provisional seizure made after such provisional registration shall lose the effect of registration in substance due to the priority preservation of registration due to the acquisition of the principal registration by the person holding the right to the provisional registration and the distribution of a real right. Therefore, under Articles 175 through 177 and subparagraph 2 of Article 55 of the Registration of Real Estate Act, the registration of provisional seizure may be cancelled ex officio (see, e.g., Supreme Court en banc Order 4294Daci675, Dec. 24, 1962; Supreme Court Order 81Ma140, Oct. 6, 1981).

According to these legal principles, since the provisional registration of this case was completed after the provisional registration of this case was completed and the principal registration based on the provisional registration of this case was again made, the provisional registration of this case becomes null and void. Accordingly, the registry official can cancel the provisional registration of this case ex officio in accordance with Articles 175 through 177 and 55 subparagraph 2 of the Registration of Real Estate Act.

Nevertheless, the order of the court below that the registrar cannot ex officio cancel the provisional attachment registration of this case conducted after the provisional registration of this case, is erroneous in the misapprehension of legal principles as to the validity of principal registration based on provisional registration and the allocation of real rights, thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, the order of the court below is reversed and the case is remanded 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.

[Attachment] List of Real Estate: omitted

Justices Kim Ji-hyung (Presiding Justice)