[1] The meaning of “where there is a justifiable reason not to apply for registration” under the proviso of Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name

[2] The case holding that Article 5 (2) of the former Act on the Registration of Real Estate under Actual Titleholder's Name should be applied in cases where an administrative litigation, etc. is filed against a disposition imposed on a penalty surcharge pursuant to Article 5 (2) of the former Act on the Registration of Real Estate under Actual Titleholder's Name and the procedure is not completed until the new Act enters into force

[1] Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Article 5(2) of the former Act on the Registration of Real Estate under Actual Titleholder’s Name (amended by Act No. 8414 of May 11, 2007), Article 5(2) of the Addenda (amended by Act No. 8414 of May 11, 2007)

[1] Supreme Court Decision 200Du6558 decided May 17, 2002 (Gong2002Ha, 1423) / [2] Supreme Court Decision 2006Du4554 decided July 12, 2007 (Gong2007Ha, 1274)

Hanyang Food Co., Ltd. (Attorney Cho Jae-sik, Counsel for the defendant-appellant)

port of destination

Seoul High Court Decision 2004Nu581 delivered on November 18, 2004

The judgment below is reversed, and the case is remanded to Seoul High Court.

1. We examine the grounds of appeal.

Article 10 (1) (proviso) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) provides that “Where there is a justifiable reason for failing to file an application for registration,” as one of the grounds for not imposing a penalty surcharge on a person with no long-term unregistered registration, the term “where there is a justifiable reason not to file an application for registration” refers to cases where there is a circumstance that it is unreasonable to expect that the person with no long-term unregistered registration will fulfill the obligation to file an application for registration due to a statutory or de facto disability not attributable to him (see Supreme Court Decision

In full view of the adopted evidence, the lower court determined that the Plaintiff was unable to complete the registration of ownership transfer under the name of the Plaintiff on October 10, 1978, on the ground that the Plaintiff purchased three parcels, including 3,834m2, including 1,749m2 (hereinafter “instant land”) prior to the date of 360 m27, 1978, and paid sales balance on October 27, 1978. However, due to the Plaintiff’s legal entity, the Plaintiff could not obtain certification of sale of the instant land under the former Farmland Reform Act (amended by Act No. 2 of the Farmland Act, enacted from January 1, 1996, hereinafter the same), and the Plaintiff did not make considerable efforts to complete the registration of ownership transfer with the permission for farmland conversion or change of land form and quality, on the ground that the Plaintiff did not have obtained permission for land alteration from the Defendant on January 9, 199, but did not apply the same Act to the Plaintiff on April 16, 1996.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to "justifiable cause not to apply for registration" under the proviso of Article 10 (1) of the Real Estate Real Name Act.

2. The decision shall be made ex officio;

Article 5(2) of the former Real Estate Real Name Act (amended by Act No. 8418 of May 11, 2007) provides that when imposing a penalty on a person who violates the obligation to register under the name of the person having the actual right to real estate, the value of the real estate as of the date on which the penalty is imposed, regardless of whether the title trust relation is terminated or whether the real name-registration exists, is the real estate value which serves as the basis for calculating the penalty surcharge (hereinafter “real estate appraised value”). In the case of a long-term unregistered person, a penalty surcharge is to be calculated on the basis of the appraised value of the real estate under Article 10(1) of the same Act. Article 5(2) of the said Act provides that the said real estate shall be suspended until the Constitutional Court declared that it is inconsistent with the Constitution on May 25, 2006, and accordingly, Article 5(2) of the former Real Estate Real Name Registration Act (amended by Act No. 8418 of May 11, 2007) has already been imposed on the real estate title trust relation or the new title trust agreement.

Therefore, in the case of this case, the proviso of Article 5 (2) of the Act on the Registration of Real Estate Actual Titleholder’s Name is applied pursuant to the proviso of Article 5 (2) of the same Act. Therefore, the amount of penalty shall be calculated by calculating the value of real estate as the appraised value of the real estate as of April 19, 199 where the registration of ownership transfer was

Nevertheless, the lower court determined that the instant disposition, which calculated and imposed a penalty surcharge on the value of the instant land as of the date of imposing a penalty surcharge pursuant to Article 5(2) of the former Real Estate Real Name Act as the real estate assessment amount, was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the assessed value of real estate, which is the basis of the calculation of a penalty surcharge

3. Conclusion

Therefore, the judgment 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 Kim Young-ran (Presiding Justice)