Whether the pre-registration is presumed to have been made in bad faith for the purchaser of the land

The fact that a person has purchased land with prior notice registration can not be determined as a malicious purchaser solely because he/she knowingly purchased such land.

Article 570 of the Civil Act

Supreme Court Decision 73Da141 delivered on June 11, 1974

Plaintiff, Ltd.

Defendant

Daegu District Court of the first instance (70 Ghana3824)

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant shall pay to the plaintiff 50,000,000 won with the annual rate of 5% from the day from the day of service to the day of full payment.

The judgment that the costs of lawsuit should be borne by the defendant and the declaration of provisional execution are sought.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

In full view of the statements in Gap evidence 1-1-2, Gap evidence 1-3 (each judgment), evidence No. 3 (Protocol of Permission), evidence No. 4 (Protocol of Examination), and evidence No. 5 (Protocol of Examination), and testimony of non-party No. 1 and 2 of the court below which are the building site, the non-party No. 3 was owned by the original non-party No. 3 at 3514, Daegu-gu, Daegu-gu, 2514, which are the building site, and the registration No. 7654, which was received by the Daegu District Court on Nov. 22, 1963, which became final and conclusive on Nov. 28, 1968, and the defendant sold the above building site to non-party No. 4 on March 16, 1968, and completed the registration of ownership transfer to the non-party No. 14098, which is the non-party No. 1 and the non-party No. 2 were found to be invalid on April 27, 196.

Therefore, each of the above transactions between the defendant, the non-party 4, the non-party 4, and the plaintiff is the sale by another person. If the right which was the object of the sale does not belong to the seller and belongs to another person, and the seller is unable to acquire it and transfer it to the buyer, the buyer who was unaware of the right which was the object of the sale does not belong to the seller can claim compensation in lieu of performance against the seller. Since the non-party 4 is insolvent as the buyer of the building site, the plaintiff can claim compensation in subrogation against the defendant, who is the seller of the building site, based on the right to claim compensation against the non-party 4.

Furthermore, the amount of damages in the above case shall be calculated on the basis of the time when the right which became the object of sale and purchase becomes impossible to acquire and transfer the right as in the case of non-performance of general obligation, and in the case of the right which became the object of sale and purchase belongs to another person, the buyer has the right to claim benefits until the sale and purchase contract is terminated, and unless there are special circumstances, the buyer's right to claim reimbursement is terminated. Thus, the amount of damages in lieu of the buyer's performance is determined on the basis of the market price of the object at the time of cancellation of the contract. Thus, in this case, when the above contract for compensation between the plaintiff company and the non-party 4 and the defendant was terminated on the basis of the non-party 1's testimony of the court below, it is recognized that the plaintiff filed a claim for compensation as in this case with the non-party 4, but the non-party did not comply with such claim, and it can be seen that the plaintiff's declaration of intention to cancel the above contract for compensation from 00 won to 190 percent per annum.

However, the defendant asserts that prior to the plaintiff's purchase of the building site, the non-party 3 filed a lawsuit against the defendant and the non-party 4 to execute the procedure for cancelling the registration of cancellation of ownership transfer registration, and that the plaintiff purchased the building site with the knowledge of such fact and thus, the plaintiff's claim for this case should be dismissed. The plaintiff's purchase of the building site is a malicious purchaser who was the purchaser of the non-party 4, and that the ownership of the building site does not belong to the non-party 4, the seller, and thus, it cannot be viewed as a claim for damages pursuant to Article 570 of the Civil Act. However, since the plaintiff was aware of the fact that the registration of prior notice of the above defendant's assertion was made, it cannot be concluded that the plaintiff was the

Therefore, the plaintiff's claim for objection is justified, and this conclusion is just and the defendant's appeal is without merit, and it is so decided as per Disposition by applying Articles 384, 95, and 89 of the Civil Procedure Act.

Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju