Busan District Court Dong Branch-2014-Ga group-14193 ( October 11, 2015)

Since the provisional registration of this case constitutes a provisional registration of security, the defendant is not obliged to accept the cancellation thereof.

Whether provisional registration is a provisional registration for security is not formally determined by whether the cause of provisional registration is indicated as a trade reservation or by the type of documents exchanged at the time of indication or registration on the registry, but by the substance of the transaction and the interpretation of the intention of the parties, and the claimant must prove.

Cancellation of registration with any interested third party under Article 57 of the Registration of Real Estate Act

Busan District Court 2015Na42336 Registration of Transfer Claim and Cancellation of Transfer Claim and Provisional Registration

United StatesA

Korea

Busan District Court Decision 2014Kadan14193 Decided February 11, 2015

May 12, 2016

July 14, 2016

1. The plaintiff's appeal is dismissed.

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

Of the judgment of the first instance court, the part against the defendant is revoked. The defendant will express his/her intention to accept the registration of the cancellation of the registration of the right to claim transfer of ownership completed on February 16, 2009 by the SeoulCC District Court No. 78 XX with respect to the real estate listed in the separate sheet (hereinafter referred to as the "real estate in this case").

1. Basic facts

A. On February 16, 2009, the Plaintiff completed the provisional registration of the right to claim ownership transfer registration (hereinafter referred to as the “provisional registration of this case”) on the instant real estate with respect to the instant real estate against the co-defendants of the first instance court on August 13, 2008.

B. On September 9, 2009, the Defendant seized the right to claim the registration of transfer of ownership pursuant to the above purchase and sale reservation on the ground that RD failed to pay national taxes, and according to the above attachment, on September 21, 2009, the additional registration of attachment was completed with respect to the provisional registration of this case.

[Ground of recognition] Facts without dispute, Gap 1 evidence, Eul 1, Eul 2, 3 and 5 evidence, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Around August 13, 2008 between the Plaintiff and developedD, a sales contract was concluded with respect to the instant real estate, but developedD did not pay any balance of KRW 100 million, and thus the above sales contract was terminated, the Defendant is obligated to express his/her consent to the registration of cancellation of the instant provisional registration. Even if the instant provisional registration falls under the provisional registration of security value, there is no secured claim secured by the said provisional registration, so the Defendant should express his/her consent to the registration of cancellation of the instant provisional registration.

B. Defendant

The provisional registration of this case constitutes a provisional registration for security because it was established for the purpose of securing the payment obligation of design service for the EED, Co., Ltd. operated by the Plaintiff, and thus cannot respond to the Plaintiff’s request.

3. Determination

(a) Facts of recognition;

(1) On July 10, 2007, the Plaintiff entered into a design service contract (hereinafter “instant design service contract”) between EEE, Co., Ltd. (hereinafter “EEEEE”), the representative director of which, with respect to a market improvement project for reconstruction of the GG H II Dong II, the total contract amount of KRW 28,50,000 (excluding value-added tax) and the contract period from July 2007 to October 2008. On August 31, 2007, the Plaintiff paid KRW 50,000,000 as a down payment to EE.

B. On December 31, 2007, the JJK holding EE LL as of December 31, 2007, the maximum debt amount of 23 MMM 501 was 200 million won, and on the same day, the registration of ownership transfer registration was completed with respect to MM 1801 as to the above MM 1801.

Fidelity did not receive the remainder of the design service cost, excluding the down payment of KRW 50 million, from EE, even though the service was performed in accordance with the design service contract of this case.

On the other hand, on August 13, 2008, the Plaintiff prepared a sales contract (Evidence A2, hereinafter referred to as "the sales contract in this case") to sell the instant real estate in KRW 400 million to an emptyD. The details of the sales contract are as follows.

Article 1 (Purpose)

The seller and the buyer shall pay 400 million won as follows by an agreement:

The sum of down payment and intermediate payment KRW 300 million: Payment in lump sum on March 31, 2009

Balance 100 million won: Payment on August 31, 2009

Article 2 (Transfer of Ownership, etc.)

A seller shall deliver documents necessary for the registration of transfer of ownership to a purchaser simultaneously with the receipt of the balance of the purchase price, and cooperate with the registration procedure, and the delivery date of the said real estate shall be August 31, 2009.

Article 4 (Cancellation of Contracts)

If the buyer fails to comply with Article 1, this contract shall be rescinded.

4. Special agreement

An empty DD may register the provisional registration of the right to claim ownership transfer under the pre-sale contract, but if an empty DD fails to fulfill the above contract terms, the registration of the right to claim ownership transfer is null and void, and the buyer must cancel the registration of the right to claim ownership transfer under the pre-sale contract.

(v) On August 14, 2008, the Plaintiff completed on August 14, 2008, the establishment registration of a mortgage or the establishment registration of a mortgage in the vicinity of KRW 400 million with respect to the real estate in this case (hereinafter referred to as the “mortgage or the establishment registration of a mortgage in this case”).

⑹ 원고는 2009. 2. 16. 빈DD으로부터 이 사건 근저당권설정등기를 말소받고, 주식회사 NN은행에 이 사건 아파트에 관하여 채권최고액 1억 2,000만 원 채무자 박OO(원고의 처)로 된 근저당권설정등기를 마쳐주었으며, 같은 날 빈DD에게 이 사건 가등기를 마쳐주었다.

⑺ 이 사건 가등기의 등기필정보 및 등기완료통지서에 첨부된 2008. 8. 13.자 매매예약서(갑18호증의 3)에는 '빈DD이 2008. 8. 13. 원고에게 이 사건 부동산의 매매대금 4억 원 중 3억 원을 예약 증거금으로 지급했다'고 기재되어 있다.

[Reasons for Recognition] Each entry of evidence, Gap 2, 3, 5, 6, 12, 18 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

B. Determination

(1) The issue of whether a provisional registration is a provisional registration is determined by whether the pertinent provisional registration is the real purpose of collateral security, and it is not formally determined by whether the cause on the registry of the pertinent provisional registration is indicated as a trade reservation, or by the type of documents exchanged at the time of indication or registration on the registry, but by the substance of the transaction and the interpretation of the intent of the parties concerned (see, e.g., Supreme Court Decisions 91Da36932, Feb. 11, 1992; 98Ma133, Oct. 7, 1998). The issue of whether a provisional registration is a provisional registration for priority preservation according to the trade reservation or provisional registration shall be proved by the claimant. In addition, when the interpretation of the intent of the parties indicated on the disposal document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively considering the contents of the text, motive and circumstance of the agreement, the purpose to be achieved by the agreement, the party’s genuine intent, etc. (see, e.g., Supreme Court Decision 2002Da656275.

In light of the aforementioned legal principles, it is reasonable to deem that the Plaintiff created the provisional registration of this case in order to secure the EE EE’s obligation to design service cost for empty DD, in which the Plaintiff was the representative director, in light of the following circumstances, the evidence as seen earlier, and the evidence as seen earlier, A15, 16, and 17 evidence, and the purport of the entire pleadings, were comprehensively taken into account. Thus, the Plaintiff’s above assertion is without merit.

① Since the EE had aggravated financial standing in around 2008 and failed to pay the design service cost pursuant to the instant design service contract to EE, the Plaintiff, the representative director of E, appears to have been in need of providing EE as security the instant real estate owned by EE. The Plaintiff, while establishing and operating E, provided joint and several suretys for EE. However, the possibility that the Plaintiff guaranteed the above design service payment cannot be ruled out.

② In the instant sales contract, the Plaintiff did not receive the down payment from an emptyD at all on the contract date, and the sum of the down payment and the intermediate payment on March 31, 2009, seven months after the contract date, and the remainder of KRW 100 million on August 31, 2009, five months after the contract date, are very exceptional in light of trade practices.

③ On August 14, 2008, the day following the date on which the Plaintiff entered into the instant sales contract, the Plaintiff completed the registration of establishment of the instant neighboring mortgage of KRW 400 million with the maximum debt amount. On February 16, 2009, the Plaintiff’s wife, around February 16, 2009, need to cancel the instant provisional registration, which is a prior collateral, in order to obtain a loan from NB bank, and instead, completed the instant provisional registration against NB in lieu of cancelling the instant collateral from NBD.

④ The Plaintiff asserted to the effect that, in the instant sales contract on March 31, 2009, the Plaintiff agreed to receive KRW 300 million in total the down payment and the intermediate payment. However, in the preparatory document dated December 17, 2014, the Plaintiff reversed the existing assertion by asserting that, in lieu of the payment of KRW 300 million by accepting the obligation to return the lease deposit amount of KRW 200 million with respect to the instant real estate and the obligation of KRW 100 million with respect to the NO Co., Ltd., NO, which is the secured obligation of the right to collateral security (right to collateral security) established on the instant real estate, the Plaintiff agreed to pay KRW 300 million in lieu of the payment of the purchase price. However, the instant sales contract did not state any fact that RO takes over the obligation in lieu of the payment of the purchase price, which is the most important factor of the sales contract, and there was no obligation to NOO, Inc., to be a deposit of KRW 300 million in the instant sales contract.

⑤ There was no purchase price under the instant sales contract or the deposit money under the pre-sale agreement as of August 13, 2008 to the Plaintiff (the Plaintiff stated to the effect that there was no money actually received from an emptyD on the first day of pleading in the trial).

(6) The Plaintiff asserts to the effect that the instant sales contract was terminated by failing to cancel the instant sales contract, even though the developedD did not pay KRW 300 million in total the down payment and the intermediate payment on March 31, 2009. However, there are no other data such as objective proof of content that the Plaintiff notified the developedD to pay the purchase price or notified the developedD of its intent to cancel the sales contract at the time of nonperformance, except for the confirmation document of the developedD, which led to the confession of the Plaintiff’s claim in this case.

7) On September 21, 2009, the Plaintiff and RD notified the head of a tax office of the instant sales contract that the Defendant obtained a fixed date on the sales contract of this case, and that “the sales contract of this case was rescinded on August 31, 2009,” to the head of a tax office.

4. Conclusion

The plaintiff's claim against the defendant is dismissed due to the lack of reason. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.