Registration of restitution due to cancellation of contract shall not infringe on the rights of a third party.

The defendant is a person who acquired a new right with a new interest before the rescission on the basis of the legal effect arising from the rescission of the contract and falls under a third party under the proviso of Article 548(1) of the Civil Act, and the plaintiff cannot assert the effect of rescission to the defendant

2013 Gohap5425 Cancellation of registration of mortgage

주식회사 〇〇

Korea

August 13, 2014

August 27, 2014

1. The plaintiff's claim is dismissed.

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

1. Facts of recognition;

가. 원고는 2011. 11. 29. AA 주식회사(이하 'AA'라 한다)에 이 사건 부동산을 매매대금 〇〇〇억 원에 매도하는 매매계약(이하 '이 사건 매매계약'이라 한다)을 체결하고, 2011. 12. 8. 이 사건 부동산에 관하여AA 명의의 소유권이전등기를 마쳐주었다.

B.A entered into a security agreement with the Defendant on July 23, 2012, and on August 3, 2012, on the ground of the above security agreement, on August 3, 2012, the AA completed the registration of creation of a collateral on the part of the purport of the claim (hereinafter referred to as the "registration of creation of a collateral on the part of the instant real estate").

다.AA가 원고에게 위 매매대금 중 14억 원만 지급하고 나머지를 지급하지 않자, 원고는 이 사건 부동산에 관하여 소유권이전등기말소청구권을 피보전권리로 하여 청주지방법원 2012카합〇〇〇호로 부동산처분금지가처분을 신청하여 위 법원으로부터 2012. 8. 23. 부동산처분금지가처분 결정을 받았다. 원고는AA를 상대로 청주지방법원 2013가합〇〇〇호로 소유권이전등기말소청구소송을 제기하였고, 위 법원으로부터 2013. 10. 16. 승소판결을 받았으며, 위 판결은 2013. 11. 14. 확정되었다. AA 명의의 소유권이전등기는 2013. 11. 21. 위 확정판결을 원인으로 말소되었다.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5 (including branch numbers, if any), Eul evidence 2 through 6, the purport of the whole pleadings

2. Determination

In the case of the Defendant, the Plaintiff concluded a contract with A to provide the instant security for tax payment with the knowledge of the fact that the Plaintiff was not paid the purchase price of the instant sales contract from AA, and completed the registration of the establishment of the instant nearby mortgage. Accordingly, the presumption of registration was broken. Therefore, the Defendant asserts that the Plaintiff is liable to implement the registration procedure for cancellation of the registration of the

The plaintiff's assertion is without merit, since the defendant's knowledge of the above circumstances alone does not affect the validity of the registration of the establishment of a mortgage of this case, such as the failure of presumption of the establishment of a mortgage of this case.

Even if the Plaintiff’s assertion was decided to the effect that the establishment registration of the instant establishment that AA completed to the Defendant prior to the cancellation of the instant sales contract due to the retroactive effect of the rescission, it constitutes a third party under the proviso of Article 548(1)1 of the Civil Act and who acquired a complete right with a new interest prior to the cancellation based on the legal effect arising from the rescission of the instant sales contract, and thus constitutes a third party under the proviso of Article 548(1)1 of the Civil Act. The Plaintiff’s assertion also has no merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.