[1] The legal nature of the right to complete the pre-sale agreement (i.e., formation right) and whether the exclusion period of the right to complete the pre-sale agreement has expired is an ex officio examination by the court (affirmative)

[2] In a case where the right to complete the reservation is exercised by delivering a copy of the complaint containing the declaration of intent to exercise the right to complete the reservation to the other party, whether the right to complete the reservation has the right to lawfully exercise the right to complete the reservation within the exclusion period (affirmative)

[3] The person who bears the burden of proof as to the requisite fact (=the party who asserts it)

[1] Article 564 of the Civil Act / [2] Article 564 of the Civil Act, Article 134 of the Civil Procedure Act / [3] Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 99Da18725 Decided October 13, 200 (Gong2000Ha, 2313) / [2] Supreme Court Decision 98Da46945 Decided April 9, 199 (Gong199Sang, 840) Supreme Court Decision 2008Da27301, 27318 Decided September 11, 2008 / [3] Supreme Court en banc Decision 2012Da202819 Decided May 16, 2013 (Gong2013Ha, 1077)

[Judgment of the court below]

Defendant (Law Firm Name, Attorneys Cho Young-young et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2018Na61591 Decided April 10, 2019

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. On the grounds indicated in its reasoning, the lower court rejected the Defendant’s defense that the Plaintiff’s right to complete the instant provisional registration was lawfully exercised within the exclusion period, on the premise that the Defendant asserted that the right to complete the purchase and sale had ceased to exist due to the lapse of the exclusion period of ten years, on the premise that “the parties did not have agreed to set a exclusion period exceeding ten years,” and that the right to complete the purchase and sale should not be deemed extinguished solely on the ground that ten years have elapsed from the date of the establishment of the reservation.”

2. However, we cannot accept the judgment of the court below for the following reasons.

A. In the unilateral promise for sale, the right that the other party of the pre-sale would have the effect of sale by expressing his/her intent to complete the pre-sale agreement, i.e., the right to conclude the pre-sale agreement is a kind of right to form and exercise period between the parties, if there is no such an agreement, it shall be exercised within 10 years from the establishment of the pre-sale agreement, and when such period expires, the right to complete the pre-sale agreement shall be extinguished upon the lapse of the exclusion period. Whether the limitation period for the right to complete the pre-sale has expired is an ex officio investigation, and the court shall, without the absence of any allegations by the parties, investigate ex officio and consider the decision (see Supreme Court Decision 9Da18725, Oct.

A right to the completion of a reservation may be exercised within a certain period, either judicial or extra-judicial period. In cases where the right to the completion of a reservation exercises a judicial power by delivering a copy of the complaint containing an expression of intent to exercise the right to the completion of a reservation to the other party, the exercise of the right to the completion of the reservation becomes effective only when the copy of the complaint reaches the other party, and thus, the sale becomes effective between the right to the completion of the reservation and the other party. Therefore, the copy of the complaint containing an expression of intent to exercise the right to the completion of the reservation shall be served to the other party within the exclusion period, but the right to the completion of the reservation shall be deemed to have lawfully exercised the right to the completion of the reservation within the exclusion period (see Supreme Court Decision 2008Da27301, 2731

In principle, the burden of proof of the requisite fact shall be borne by the party who asserts the relevant requirement, except where there is a clear legal basis, such as a legal presumption (see Supreme Court en banc Decision 2012Da202819, May 16, 2013).

B. Examining the reasoning and record of the lower judgment, the following facts are recognized.

(1) On September 29, 2006, the Plaintiff entered into a promise to sell and purchase shares of 75/100 of the instant building, and completed the provisional registration of this case. On September 26, 2016, the Plaintiff filed a lawsuit against the Incheon District Court Decision 2016Da114035 against the Plaintiff for the implementation of the principal registration procedure based on the provisional registration of this case, which was due to the completion of the promise to sell and purchase based on the provisional registration of this case, and the duplicate of the complaint of the instant case was served on October 31, 2016.

(2) On July 14, 2017, the Busan District Court rendered a judgment to the effect that “ABD Co., Ltd. shall implement the procedures for the principal registration of transfer of ownership based on the provisional registration of this case to the Plaintiff on October 31, 2016,” and the said judgment was finalized on August 2, 2017.

(3) On August 25, 2017, the Plaintiff completed the registration of ownership transfer relating to 75/100 shares of the instant building pursuant to the said final judgment.

(4) Meanwhile, on August 2, 2016, the Defendant leased the instant building, which is a commercial building, from the Libera Co., Ltd., and filed a business registration report on August 19, 2016, and thereafter conducted a clothing retail business with the trade name of ○○○○○, from August 25, 2016, the Plaintiff acquired the opposing power of the right of lease prior to the acquisition of the registration of ownership transfer as to 75/100 shares among the instant building.

C. Examining the above facts in accordance with the legal principles as seen earlier, there is no evidence to deem that there was an agreement stipulating the exclusion period exceeding 10 years between the LAC and the Plaintiff, and thus, the exclusion period of the Plaintiff’s right to complete the reservation would be ten years. Thus, the Plaintiff’s right to complete the reservation based on the instant provisional registration is not lawfully exercised from September 29, 2006 to September 29, 2016, which was the date when the reservation was concluded, and thus, it is determined that the provisional registration of this case was extinguished on September 30, 2016, and thus, the validity of the provisional registration of this case was also extinguished.

D. Nevertheless, the lower court determined that, on the premise that the Defendant was liable to prove that “the period of exclusion has not been fixed for a period exceeding ten years between the Plaintiff and the LABA,” the Plaintiff cannot be deemed to have extinguished the right to complete the reservation solely on the ground that ten years have elapsed from the date of the establishment of the trade reservation,” and rejected the Defendant’s defense that the Plaintiff’s right to complete the reservation was extinguished by deeming that the Plaintiff’s right to complete the reservation was exercised within the exclusion period. In so doing, the lower court erred by misapprehending the legal doctrine on the exclusion period of the right to complete the purchase reservation, the effect of provisional registration, and the burden of proof

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)