2012Guhap3566 and revocation of disposition of imposing penalty surcharge for non-performance

00

Gunsan City

Litigation Performers Kim-ok

March 27, 2013

April 17, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing a penalty surcharge imposed on the Plaintiff on September 27, 2012 is revoked (the Plaintiff stated in the complaint that the Plaintiff seeks revocation of the disposition of imposing a non-performance penalty, but the appeal does not impose a non-performance penalty, other than a penalty surcharge, on the Plaintiff. The part seeking revocation of the disposition of imposing a non-performance penalty, among the claims, appears to be erroneous).

1. Details of the disposition;

A. On December 24, 198, the Plaintiff and the Defendant, who took partial charge of the management and disposal of State property, purchased from the Republic of Korea the price of KRW 10,010,00 from the Republic of Korea to KRW 25.2m (hereinafter referred to as “instant land”) from the Gunsan city on 10,000 to 294.2m (hereinafter referred to as “the instant land”). The said price was paid by dividing the deposit and the four installment payments, after concluding a sales contract on December 24, 192.

B. On April 18, 2012, the Plaintiff completed the registration of transfer of ownership on December 24, 198 with regard to the instant land, the purchase and sale of which was made as its principal.

C. On September 27, 2012, the Defendant imposed a penalty surcharge of KRW 2,358,720 on the Plaintiff, applying Article 10 of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) and Article 4-2 of the Enforcement Decree of the same Act, on the ground that the Plaintiff is a person whose long-term unregistered registration of the instant land was not registered (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff knew that the plaintiff purchased the land of this case from the defendant, who is an administrative agency, that the defendant would register the ownership of the land of this case, and that the plaintiff did not inform the plaintiff that he had the obligation to register the ownership of this case and urge the plaintiff to complete the registration of ownership transfer only once after the plaintiff paid the land price in full. Since this is the defendant's administrative error, the disposition of this case is unlawful.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

In the proviso of Article 10(1) of the Real Estate Real Name Act, "Where there is a justifiable reason for not being able to file an application for registration" that is set as one of the reasons for which a penalty surcharge cannot be imposed against a person who has not been registered for a long time" means a case where there is a circumstance to deem it unreasonable to expect that he/she will be able to perform his/her duty to file an application for registration due to a statutory or factual disorder not attributable to a person who has not been registered for a long time (see Supreme Court Decision 2004Du1427, Jul.

On the other hand, since the Defendant’s sale of the instant land, which is State property, is a private economic entity and is merely a contract under the private law conducted on an equal footing with the Plaintiff, it cannot be said that the Defendant is obligated to register the transfer of ownership in the name of the Plaintiff without the Plaintiff’s application, who is the person entitled to make a registration, beyond the intention to cooperate in the procedure for registration of transfer of ownership on the instant land solely on the ground that it is an administrative office, or is subject to the imposition of a penalty surcharge in the event that the Defendant

Therefore, it is difficult to view that there is a justifiable reason why the Plaintiff was unable to apply for registration of transfer of right to file a lawsuit on the instant land only with the grounds alleged by the Plaintiff. Therefore, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Justices Kim Hyun-tae

Judges Cho Jong-soo

Judges Cha Sung-sung

Related Acts and subordinate statutes

Act on the Registration of Real Estate under Actual Titleholder's Name;

Article 10 (Penalty Provisions, etc. against Persons Making No Registration for Long Time)

(1) Special measures for the registration of real estate under Articles 2 (1), 11 and 4244 of the Act on Special Measures for the Registration of Real Estate;

A person to whom Article 2 of the Addenda to the Act applies shall be within three years from the date falling under any of the following subparagraphs:

for a person entitled to registration who has not filed an application for registration of transfer (hereinafter referred to as "person entitled to registration for a long-term period")

Penalty surcharges within the scope of 30/100 of the appraised value of movable property (within the scope of Article 11 of the Act on Special Measures for the Registration of Real Estate)

Where an administrative fine has already been imposed, it refers to the amount obtained by subtracting the amount equivalent to the administrative fine).

(c) No registration shall take effect pursuant to the main sentence of Article 4 (2) and Article 12 (1): Provided, That no registration shall take effect pursuant to the main sentence

(2) In case of a new application for registration, and there is a justifiable reason not to apply for registration

(2) If any, this provision shall not apply.

1. If parties to a contract bear a mutual pecuniary obligation, the performance of the consideration shall be de facto fully paid;

date of commission; and

2. Where only one of the parties bears obligations, the date on which the contract takes effect.

B. Whether the purpose is to evade taxes or avoid restrictions under the laws and regulations, real estate, etc.

Presidential Decree in consideration of whether an administrative fine has been imposed under Article 11 of the Act on Special Measures for the Development of Public Offices;

shall be determined by the Regulations.

m. Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder's Name

Article 4-2 (Standards for Imposition of Penalty Surcharges on Persons Making No Registration for Long Time)

The imposition criteria for penalty under Article 10 (2) of the Act shall be as the attached Table: Provided, That where it is not for the purpose of evading taxes or avoiding the restrictions pursuant to the Acts and subordinate statutes, 50/100 may be reduced.

[Attachment] Criteria for imposing penalty surcharges (related to Articles 3-2, 4-2, and 8)

The amount of penalty surcharge shall be the sum of the penalty surcharge rates referred to in subparagraphs 1 and 2;

It shall be calculated by multiplying the appraised value of real estate.

1. Imposition rate of penalty surcharges based on the appraised value of real estate;

2. Imposition rate of penalty surcharges based on the expiration period of the violation of duty;

A person shall be appointed.

Real Estate Registration Special Measures

Article 2 (Obligation to Apply for Registration, etc. of Ownership Transfer)

(1) A person who enters into a contract with the contents of transfer of real estate ownership shall be as follows:

An application for the registration of transfer of ownership shall be filed within 60 days from the date: Provided, That the contract shall be revoked and cancelled.

(2) In the event that such act is null and void, this shall not apply.

1. If the parties to the contract bear a quid pro quo obligation, the performance of the consideration shall be completed;

2. If only one of the parties bears the obligation, the day on which the contract has taken effect.