Whether the right to completion of the pre-sale has expired

The right to conclude a pre-sale is a kind of right to form a contract and has agreed upon the exercise period between the parties, if not, within such period, or within 10 years from the time when the pre-purchase was made, and the right to complete the pre-sale becomes extinct upon the lapse of the exclusion period.

2015da 114674 Cancellation of provisional registration

Korea

50,000

2015.08.18

2015.15

1. From among the real estate listed in the separate sheet to B, the defendantCC among the real estate listed in the separate sheet, will implement the procedure for registration of cancellation of the right to claim ownership transfer, which was completed under No. 47875 on July 16, 1996 by Suwon District Court ○○○○○○○ registry office with respect to each 2/9 share, with respect to each 2/9 share.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

The defendants will implement the procedure for cancellation of the provisional registration of the right to claim transfer of ownership, which was completed by No. 47875 on July 16, 1996, with respect to the real estate listed in the attached list to Suwon District Court ○○○○○ registry office of Suwon with respect to the real estate stated in

1. Basic facts

A. On July 15, 1996, TradeG entered into a pre-sale agreement with the HighB on the real estate listed in the separate sheet (hereinafter “instant real estate”) and completed the provisional registration of the right to claim transfer of ownership on July 16, 1996 on the ground of the above pre-sale agreement (hereinafter “instant provisional registration”).

B. On April 30, 1998, the Plaintiff notified the lateB of the payment deadline to pay global income tax of KRW 72,777,180, the Plaintiff’s global income tax. Since the lateB did not pay the said tax, the Plaintiff seized the instant real estate on June 30, 1998 and completed the attachment registration on July 4, 1998. As of April 2015, the amount of delinquent tax by the lateB is KRW 128,815,230.

C. On December 3, 2014, Nowon died, and the husband succeeded to the 3/9 shares, Defendant DaD, EE, and EF, each of which owns 2/9 shares, respectively.

D. As to the instant real estate, the establishment registration of a mortgage over the instant real estate was completed in the name of the Korea Housing and Commercial Bank, the maximum debt amount of KRW 5.9 million, the maximum debt amount of KRW 6.5 million in the name of the Hanil Bank Co., Ltd. and KRW 13 million. As of April 30, 2014, the standard market price as of April 30, 2014 is KRW 66 million.

2. Determination

A. The plaintiff's assertion

Since the right to make a settlement of purchase and sale reservation against NowonG’s heartB, the grounds for registration of the instant provisional registration, has expired after the limitation period has expired, the Defendants, the heir of NowonG, are obligated to implement the procedure for cancellation registration of the instant provisional registration to the SiB. The Plaintiff, as the creditor of the SiB, seeks the cancellation of the instant provisional registration from the Defendants by subrogationing the heartB as the creditor of the SiB.

B. Determination

(1) The right that may become effective as a result of the other party’s declaration of intent for the completion of the pre-sale agreement, namely, the right to conclude the pre-sale agreement, is a kind of right to form and exercise the period of exercise between the parties, if there is no such an agreement, it shall be exercised within 10 years from the time the pre-sale agreement is made; the right to conclude the pre-sale agreement shall be extinguished upon the lapse of the exclusion period; and the period of limitation shall not be interrupted during the exclusion period (see, e.g., Supreme Court Decision 200Da26425, Jan. 10, 200).

According to the above facts, the right to make a settlement of purchase and sale reservation for NowonG's heartB, the grounds for registration of the provisional registration of this case, has expired on July 15, 1996, which was 10 years from July 15, 1996, and the limitation period has expired. The plaintiff sought cancellation of the provisional registration of this case against the defendants, but the defendants are obligated to cancel the provisional registration of this case within the scope of inheritance of the net Nowon's property. Thus, the defendantCC among the real property of this case is obligated to cancel the provisional registration of this case within the scope of inheritance of the net Nowon's property. Accordingly, the defendantCC is obligated to perform the cancellation registration procedure of the provisional registration of this case with respect to shares of 3/9 with respect to shares of this case 2/9 shares, the defendant DD, E, E, and EF.

(2) Defendant AD asserts that the provisional registration of this case is a provisional registration for the purpose of securing the claim against NowonG’s coreB. In addition, even if the right to complete the purchase and sale reservation based on the pre-sale agreement for the purpose of collateral security ceases to exist due to the expiration of the exclusion period, the obligee still holds the status as the secured party, and as such, the obligor cannot file a claim for cancellation of the provisional registration against the obligee unless the obligee’s secured claim is extinguished. In this case, there is no evidence to acknowledge that the provisional registration of this case is the provisional registration for the purpose of collateral security. Thus, Defendant DD’s assertion is without merit

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.