Daegu District Court-2016-Kadan24847 ( December 16, 2016)

The third party referred to in the proviso of Article 548(1) of the Civil Act refers to a person who has acquired full rights by means of registration, delivery, etc.

In general, a third party under the proviso of Article 548(1) of the Civil Act refers to a person who has acquired a complete right by means of registration, delivery, etc., as well as a new interest prior to sunset based on the legal effect arising from the cancelled contract. As such, the transferee of contractual claims or the obligee who has seized or entirely seized such claims themselves does not constitute a third party under this context.

2017Na300518 Provisional Registration and Cancellation, etc.

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Korea

Daegu District Court Decision 2016Gadan24847 Decided December 16, 2016

June 8, 2017

June 29, 2017

1. The plaintiff's appeal is dismissed.

2. Upon the Plaintiff’s conjunctive claim added at the trial, the Defendant expressed his/her intention of each consent to the Plaintiff regarding the cancellation registration of the provisional registration of the right to claim transfer of ownership, which was completed under No. 73138 and No. 73139, July 19, 2013, with respect to each real estate listed in the separate sheet.

3. The costs of the trial shall be borne by the defendant.

Of the judgment of the first instance court, the part against the plaintiff against the defendant shall be revoked. The defendant shall, with respect to each real estate listed in the attached list, express his/her intention of each acceptance as to the cancellation registration of provisional registration of the right to claim transfer of ownership as stated in the attached list (the plaintiff asserted in the first instance court that the right to terminate the contract for purchase and sale was extinguished as a cause of claim, but added in the first instance court the agreement for purchase

1. Basic facts

A. On July 16, 2013, the Plaintiff completed the provisional registration of the right to claim ownership transfer (hereinafter “the provisional registration of this case”) on July 19, 2013 with respect to each real estate listed in the separate sheet (hereinafter “the instant real estate”) on the part of co-defendant ○○○○○○ (hereinafter “○○○”).

B. On October 21, 2013, the Defendant seized the right to claim ownership transfer due to the instant trade reservation on the ground that ○○○○ was delinquent in national taxes, and following the attachment, the additional registration of attachment was completed on November 4, 2013, based on the provisional registration of this case.

[Reasons for Recognition] Facts without dispute, Gap evidence No. 1, Eul evidence No. 1, Eul evidence No. 1 (hereinafter referred to as "branch number") and the purport of the whole pleadings

2. Determination as to the cause of action

(a) The primary cause of the claim;

1) The plaintiff's assertion

At the time of the promise to sell and purchase the instant case, as time is required until the date of preparing the purchase price, the provisional registration is demanded to be set at one year, and the date of the completion of the promise to sell and purchase between the Plaintiff and ○○○○○○○○. However, the right to conclude the promise is extinguished upon the lapse of the period, since ○○○○ does not exercise the right to conclude the reservation even after one year specified as the date of the completion of the promise to sell and purchase the instant provisional registration. Therefore, ○○ is obligated to cancel the provisional registration of this case to the Plaintiff, and the Defendant

2) The defendant's assertion

The evidence presented by the Plaintiff alone is insufficient to verify the agreement on the date of the completion of the instant trade reservation, and the Plaintiff’s assertion cannot be acknowledged since the ten-year period has not elapsed since the reservation was made.

3) Determination

There is no evidence to acknowledge that the exercise period of the right to the completion of the instant sales contract between the Plaintiff and ○○○ at the time of the instant promise to sell and purchase was set at one year from the date of the reservation. Rather, according to the written evidence Nos. 2 and 3, it can be recognized that Article 2 of the instant promise to sell and purchase “the date of the completion of the instant promise to sell and purchase shall be July 2013, and when the date of the completion thereof, it shall be deemed that the sales has been completed as a matter of course, even if there was no declaration of intention on the completion of the sales contract by ○○ upon the completion of the contract.” Therefore, the Plaintiff

(b) Preliminary cause of claim.

1) The plaintiff's assertion

On January 5, 2016, the Plaintiff and ○○○○ had rescinded the agreement on the purchase and sale of the instant real estate. As such, the right to claim ownership transfer on the instant real estate by ○○○○ became extinct. The Defendant is merely a person who seized the claim to be extinguished due to the cancellation, and thus does not constitute a third party under Article 548(1) of the Civil Act, and thus, is obligated to express his/her intention to accept the registration of cancellation

Even if the effect of rescission is denied, ○○○ obtained the provisional registration of this case from the Plaintiff, such as not only hiding the fact of delinquency to the extent that it would be seized by the Defendant at the time of the provisional registration of this case, but also not paying at all three million won of the subscription deposit. Therefore, the delivery of the application for modification of the purport of this case and the cause of the claim, thereby cancelling all legal acts incidental to the provisional registration or provisional registration of this case due to fraud or mistake. Accordingly, the right to claim ownership transfer of the real estate of this case is extinguished, and the Defendant is obliged to express his/her consent to the cancellation registration of the provisional registration of this case.

2) The defendant's assertion

Even if the Plaintiff and ○○○○ rescinded the instant promise, the Defendant was not only a third party protected pursuant to Article 548(1) of the Civil Act, but also did not know the fact that the cause for the rescission of the instant promise was occurred between the Plaintiff and ○○○○ prior to the instant lawsuit was filed. Moreover, the said rescission of the agreement without any reasonable ground, as it rescinded the contractual relationship for the purpose of extinguishment of the claim, cannot be set up against the Defendant, a third party.

Therefore, the Defendant did not have a duty to express his/her consent to the registration of cancellation of the provisional registration of this case based on the cancellation of the sales reservation of this case.

3) Determination

Article 57 (1) of the Registration of Real Estate Act provides that "where an application for cancellation of a registration is filed by a third party who has an interest in the registration, consent from the third party shall be required." The "third party who has an interest in the registration" refers to the person who is a right holder on the registration which might cause damage by making a cancellation registration and is recognized formally by the entry in the register that the damage is likely to occur. Whether the third party bears an obligation of consent is determined by whether the third party has an obligation under the substantive law in relation to the right holder on the registration of cancellation (see, e.g., Supreme Court Decision 2005Da43753, Apr. 27, 2007).

When a provisional attachment or seizure of a right of claim for transfer of ownership is conducted, a garnishee shall not be allowed to transfer a registration to a debtor, and such act shall not be asserted against a creditor. However, since a contract is not bound by a provisional attachment or seizure as to the legal relationship which causes the claim, and the disposition of a debtor and a third-party debtor is not bound by the disposition of the debtor and the third-party debtor, the basic contractual relationship itself may be rescinded. In such a case, a third-party under the proviso of Article 548(1) of the Civil Act refers to a person who has a new interest before the cancellation, based on the legal effect arising from the cancelled contract generally, and who has acquired a complete right by registration, delivery, etc., so the transferee or the creditor who has seized or entirely attached the claim itself does not constitute a third party under this context (see, e.g., Supreme Court Decisions 9Da51685, Apr. 11, 200; 200Da22850, Jan. 24, 2003>

According to the above facts, evidence, evidence, evidence evidence No. 5, and the purport of the entire pleadings, the Plaintiff completed the provisional registration of this case on the ground of the instant trade reservation, and the Defendant seized the right to claim ownership transfer of the instant real estate, and accordingly, the additional registration of seizure on the instant provisional registration was completed, and the Plaintiff was unable to pay the purchase price to the Plaintiff at all. Accordingly, the Plaintiff is recognized as having rescinded the agreement with the Plaintiff on January 5, 2016.

The Defendant is a right holder who completed the attachment registration as to the provisional registration of this case, and is recognized as having concerns over causing damages if the provisional registration of this case is cancelled, and the obligation to register cancellation of ○○○○ with respect to the provisional registration of this case is recognized as having been cancelled by agreement upon cancellation of the sale reservation of this case. In addition, according to the above legal principle, the Defendant is the creditor who seized the right to claim ownership transfer, which is the claim to be extinguished by cancellation, even though the priority was preserved by the provisional registration. Thus, it cannot be viewed as being included in the third party protected under Article 548(1) of the Civil Act.

Therefore, the Defendant is obligated under the substantive law to express his/her consent on the registration of cancellation of the provisional registration of this case.

3. Conclusion

Therefore, the plaintiff's primary claim against the defendant is dismissed as it is without merit, and the plaintiff's primary claim added in the trial is justified as it is with merit, and the judgment of the court of first instance on the above primary claim is just as it is concluded. Thus, the plaintiff's appeal against this is dismissed as it is without merit, and upon the plaintiff's preliminary claim added in the trial, the court of first instance decides to order the defendant to express his/her intention of acceptance on the registration of cancellation of provisional registration of the right to claim for transfer of ownership as above