Where the registration of seizure due to delinquency in payment of national taxes and local taxes is completed after the provisional registration of the right to claim the transfer of ownership is made and the principal registration based on the above provisional registration is made, the examination scope of the registrar for the ex officio cancellation of the seizure registration and the scope

Article 35(2) of the former Framework Act on National Taxes (Amended by Act No. 911, Jan. 1, 2010); Article 31(4) of the Local Tax Act; Article 55 Subparag. 2, 175, 176, and 177 of the Registration of Real Estate Act

Supreme Court en banc Order 2006Ma571 Decided March 18, 2010 (Gong2010Sang, 733)

[Judgment of the court below]

Incheon District Court Order 2006Ra194 dated November 22, 2006

The order of the court below shall be reversed, and the case shall be remanded to the Incheon District Court Panel Division.

The grounds of reappeal are examined.

1. The provisional registration for preserving the right to claim ownership transfer has the effect of preserving the priority order in the change in the real right of the real estate, and in a case where the principal registration of ownership transfer based on the provisional registration has been completed, interim registration, such as seizure, provisional seizure, provisional disposition, etc., which was effected after the provisional registration, will lose the effect of registration due to the priority of registration due to the acquisition by the person holding the right to the provisional registration and the sponsability of the real right, so the registrar shall, in principle, cancel the above intermediate registration ex officio in accordance with Articles 175 through 177 and 55

In addition, in principle, the registrar has no authority to examine whether the application for registration is appropriate by the application and its accompanying documents and register, such as whether the documents necessary for the application for registration have been submitted in accordance with the Registration of Real Estate Act, and whether submitted documents have been formally authentic, and there is no authority to examine whether the application is consistent with the legal relationship under the substantive law.

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 seized subject to provisional registration (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 for tax payment is the person liable for registration and any 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 effectuated 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 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 provision has the same purport. Where national tax or local tax is registered until the provisional registration is completed, even if national tax or local tax is registered before the provisional registration is registered as national tax or local tax under the provisional registration.

As such, the pertinent provision of the former Framework Act on National Taxes and the Local Tax Act provides that the 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 ensure the effectiveness of the above provision in the registration procedure, it is necessary to make a registrar to examine whether there is a high priority in substantive law between the provisional registration and the registration on seizure to the extent necessary. However, in principle, the right of examination of a registrar under the Registration of Real Estate Act is limited to that of a formal one, the scope

Therefore, in cases where the attachment registration due to the delinquency in payment of national taxes and local taxes is completed after the provisional registration of preservation of ownership transfer claim, and the principal registration based on the above provisional registration is made, the registrar shall notify the person having the right to collect delinquent local taxes ex officio under Article 175 of the Registration of Real Estate Act, and where there is a substantial dispute between interested parties as to whether the provisional registration is a security, whether the provisional registration is a security, and whether the seizure registration due to the delinquency in payment of national taxes or local taxes is prior to the provisional registration, or whether the statutory due date of national taxes or local taxes is prior to the provisional registration is prior to the provisional registration, it is reasonable to view that the registrar should ex officio cancel the attachment registration of national taxes or local taxes, regardless of the assertion of the person having the principal registration right based on the provisional registration (see Supreme Court en banc Order 2006Ma571, Mar. 18, 2010).

2. According to the reasoning of the judgment of the court below and the decision of the court of first instance as cited by the court below, the registration of the establishment of 15 neighboring provisional registration of this case, the registration of the seizure, the registration of the provisional seizure, and the registration of the decision of voluntary commencement of auction, and the fact that the principal registration based on the provisional registration of this case has been completed in the future of the re-appellant, and the registrar notified the interested parties of the registration of the provisional registration of this case after the principal registration of this case and registered the purport thereof, and the non-party and Es. Es. comprehensive company filed an objection

In light of the above legal principles, the above 15 interim registrations should be cancelled ex officio regardless of whether the provisional registration of this case is the provisional registration of security.

Nevertheless, the court below maintained the judgment of the court of first instance that the intermediate registration completed after the provisional registration of this case cannot be ex officio because it is unclear whether the provisional registration of this case is the provisional registration of priority preservation or the provisional registration of security registration of this case is the provisional registration of security registration of this case, and it erred by misapprehending the legal principles on the ex officio cancellation of the intermediate registration in the principal registration based on provisional registration, thereby affecting the conclusion of the judgment.

On the other hand, the court below should separately deliberate and decide whether the intermediate registration completed after the provisional registration of this case is maintained, and if the intermediate registration is cancelled, whether the application of this case seeking cancellation of the intermediate registration is legitimate in such a case.

3. 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.

Justices Cha Han-sung (Presiding Justice)