[1] The meaning of "third party who has an interest in the registration" under Article 75 of the former Registration of Real Estate Act, and whether the holder of the registration of provisional seizure, provisional disposition, application for auction, bankruptcy, etc. completed after the registration of cancellation is a third party who has an interest in the registration (affirmative)

[2] In a case where a real estate sales contract between a debtor and a beneficiary is revoked as a fraudulent act and the registration of cancellation has been made for restitution to the original state, whether the ownership of the pertinent real estate is naturally restored to the debtor (affirmative)

[3] The case holding that the registration of cancellation of ownership transfer conforms to the substantive legal relationship in case where Gap entered into a real estate sales contract with Eul and completed the registration of transfer of ownership in the future including Eul; Eul corporation filed a lawsuit for cancellation of fraudulent act; Eul corporation et al. filed a lawsuit for cancellation of ownership transfer registration with Eul corporation et al.; Gap's general creditor et al. completed the registration of cancellation of ownership transfer registration in the name of Eul corporation et al. due to the confirmation of the decision of cancellation of ownership transfer recommendation by subrogation of

[1] Article 75 of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011) provides that where an application for restoration of cancelled registration is filed, if a third party who has an interest in the registration exists, a written consent or a certified copy of a court judgment against it should be attached to the application. The term “third party who has an interest in the registration” refers to a person who is likely to suffer damage by making a registration of restoration of cancellation and is recognized in the form of the existing registry as having a concern over suffering damage. Therefore, a third party who has an interest in the registration, such as provisional attachment, provisional disposition, application for auction, bankruptcy, etc. which was completed after the registration of cancellation, constitutes a third party

[2] Since the revocation of a fraudulent act is relative, it is only effective between the creditor, beneficiary, or subsequent purchaser, who is a party to the lawsuit, and does not have any effect on any third party, other than the other party to the lawsuit. However, if a fraudulent act is a sales contract, it is limited to the validity of the sales contract itself, and the issue of external reversion of ownership on the pertinent real estate is bound to be resolved according to the general principles of restitution and change in real rights following the revocation of a fraudulent act. Even if a sales contract between the debtor and the beneficiary has been revoked as a fraudulent act and becomes relatively null and void only between the revocation creditor and the beneficiary, if the registration of cancellation has been completed due to the revocation of the contract as a fraudulent act, it cannot be deemed that the ownership of the pertinent real estate remains in the beneficiary who has lost the registration, and the ownership of the pertinent real estate should be deemed to have been restored as a matter of course to the debtor,

[3] The case holding that in case where Gap corporation Eul filed a lawsuit for cancellation of ownership transfer registration with Eul corporation and Eul corporation and completed the registration of ownership transfer in the future, Eul corporation's creditor Eul corporation filed a lawsuit for cancellation of ownership transfer registration, and Eul corporation et al. completed the registration of cancellation of ownership transfer registration in the name of Eul corporation et al. due to the confirmation of cancellation of the decision of cancellation of ownership transfer registration in subrogation of Gap, the registration of cancellation of ownership transfer registration in the name of Eul corporation et al., which is general creditor et al. is illegal due to defects in the procedure of cancellation of ownership transfer registration in subrogation of Eul corporation et al., but the registration of cancellation of ownership transfer registration in subrogation of the debtor et al. is no longer contestable with the registration of cancellation of ownership transfer registration in the law of the registration procedure, and the registration of cancellation of ownership transfer is equivalent to the restoration by the obligee's right holder, as the applicant's intent is, and the ownership of real estate is restored to Gap externally as well

[1] Article 75 (see current Article 59) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011) / [2] Articles 186 and 406 of the Civil Act / [3] Articles 108, 186, 406, and 407 of the Civil Act; Article 55 subparagraph 7 (see current Article 29 subparagraph 8) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 2011)

[1] Supreme Court Decision 95Da39526 delivered on September 30, 1997 (Gong1997Ha, 3253) / [2] Supreme Court Decision 84Ma610 delivered on November 24, 1984 (Gong1985, 347) decided Feb. 23, 1988 (Gong198, 587), Supreme Court Decision 89Da35421 delivered on October 30, 1990 (Gong190, 2402), Supreme Court Decision 99Da9011 delivered on May 29, 2001 (Gong201Ha, 14444)

주식회사 쎄븐파크 외 1인 (소송대리인 법무법인(유한) 태평양 담당변호사 임채웅 외 3인)

ELM loan Co., Ltd. (Law Firm Civil, Attorneys Shin Hun-han et al., Counsel for the defendant-appellant)

Seoul Eastern District Court Decision 2011Gahap23130 decided July 19, 2012

March 27, 2013

1. Revocation of the first instance judgment.

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

As to the registration of the restoration of ownership transfer registration cancelled as of November 24, 2010, which was cancelled as of November 24, 2010 on the real estate listed in the separate sheet No. 5609 with respect to the land listed in the separate sheet No. 55612, the Defendant, with respect to the registration of the restoration of ownership transfer registration cancelled as of November 24, 2010 with respect to the real estate listed in the separate sheet No. 55612, revoked as of November 24, 2010, to the Plaintiff Pakistan farming association corporation, the Defendant made a declaration of

The same shall apply to the order.

1. Quotation of the first instance judgment

The reasoning of this Court concerning the instant case is to be cited by the main text of Article 420 of the Civil Procedure Act, as it is stated in the reasoning of the first instance judgment, except for any addition and modification as follows.

[Supplementary Parts]

1.No. 5. Court rulings of the first instance shall add, on the 5th page, the following:

The foregoing objection was final and conclusive by the Supreme Court on September 7, 2012 by dismissing the appeal.

2.No. 7 of the first instance judgment, the following shall be added to:

(2) The defendant asserts to the effect that the claim in this case is unlawful because the person who is subject to the security right is not a person who has the security right to the real estate in this case. In the case of an application for restitution of cancelled registration, Article 75 of the former Registration of Real Estate Act provides that a third party who has an interest in the registration shall attach a written consent or a certified copy of the judgment against it to the application. In addition, this refers to a person who is likely to suffer damage and is recognized as having an interest in the registration and is in danger of suffering damage by the registration for restitution of cancellation in the third party column with interest in the registration, and thus, it constitutes a third party who has an interest in the registration (see Supreme Court Decision 95Da39526, Sept. 30, 1997, etc.). Therefore, as seen earlier, the defendant applies for compulsory sale of this case to the real estate in this case and has no reason to claim the above third party's interest in the registration.

3) The defendant asserts that the claim of this case seeking the consent of the defendant is unlawful unless the ownership transfer registration in the name of the non-party 1 (the non-party 1) is revoked first, since the ownership transfer registration in the name of the plaintiffs cannot be matched with the ownership transfer registration to be recovered under the name of the plaintiffs. Where a registration incompatible with that of the non-party 1 (the counter-party 1) is newly completed before the cancellation and recovery of a registration in the counter-party 1, the registration must be cancelled under the premise of recovery (see Supreme Court Decision 81Da2329, 2330, Jan. 26, 1982, etc.), but it cannot be deemed that the ownership transfer registration in the name of the non-party 1 (the counter-party 1) and the ownership transfer registration in the name of the plaintiffs before the restoration after the cancellation is without merit. The defendant's assertion is without merit.

【Revised Part】

1. The six pages 19 through 7 of the judgment of the court of first instance shall be amended as follows:

Since it is alleged that there is no standing to file a lawsuit against the plaintiff, the plaintiffs have standing to sue as a person who is formally indicated in the register to acquire ownership of the real estate of this case when the registration to cancel the registration to cancel the registration to transfer the ownership of this case is cancelled. The above argument by the defendant is without merit.

2. Forms 9 and 13, 13, 13 and 9, of the judgment of the first instance shall be amended as follows:

“3) Sub-resolutions

Therefore, the registration of cancellation of ownership transfer of this case, which the new bank, which is the cancelled creditor, received only the decision of recommending reconciliation in this case, but which was completed by the defendant on behalf of the non-party 1 (the counter-party 1), who is a general creditor, in the absence of execution, is based on the application for registration of a general creditor, not the cancelled creditor such as the cancellation of fraudulent act and the restoration decision, and constitutes a ground for rejection under Article 55 subparagraph 7 of the former Registration of Real Estate Act. However, the registration of cancellation which was completed with the reason for rejection is unlawful because there is a defect in

4) Determination as to the defendant's assertion on the validity of the cancellation registration of ownership transfer of this case

For this reason, the registration of cancellation of the ownership transfer of this case was completed in the name of Nonparty 1 (the person other than the plaintiff) on behalf of Nonparty 1 (the person other than the plaintiff) who is the real owner, and the registration was completed in the name of Nonparty 1 (the person other than the plaintiff). As a result,

A) Since the revocation of a fraudulent act is a relative effect, it is only effective between the creditor, beneficiary, or subsequent purchaser who is a party to the lawsuit and does not have any effect on any third party, other than the other party to the lawsuit (see, e.g., Supreme Court Decisions 84Ma610, Nov. 24, 1984; 87Meu1989, Feb. 23, 198; 89Meu35421, Oct. 30, 199; 9Da9011, May 29, 2001).

However, this is merely a matter of the validity of a sales contract where a fraudulent act is a sales contract, and the external ownership of the pertinent real estate is resolved in accordance with the general principles of restitution and change in real rights due to the revocation of a fraudulent act. Even if a sales contract between the debtor and the beneficiary was revoked as a fraudulent act and becomes relatively invalidated only between the revocation creditor and the beneficiary, if a cancellation registration has been made due to such revocation of a sales contract, the ownership of the pertinent real estate remains in the beneficiary who lost the registration at least in accordance with our legal system, which adopts the equitable principle as to the change in real rights. The ownership of the pertinent real estate should be deemed to have been restored to the debtor as well as in the relationship with the revocation creditor.

B) In light of the foregoing, as seen earlier, the registration of cancellation of ownership transfer of this case was already made, and as long as the objection to the registration of cancellation becomes final and conclusive as without any justifiable reason, the registration of cancellation of ownership transfer of this case became identical to the restoration by the obligee’s right of revocation, as the applicant intended by the registration procedure. Therefore, as seen earlier, the registration of cancellation of ownership transfer of this case is effective, and the ownership of the real estate of this case was restored to Nonparty 1 (the Nonparty 1) as well as to the relationship with the obligee, and is naturally restored to Nonparty 1 (the Nonparty 1). In addition, as the Defendant is also in the position of a general creditor against Nonparty 1 (the Nonparty 1). Accordingly, the cancellation and restoration by the obligee’s right of cancellation are effective for all creditors’ interests, it accords with the purport of Article 407 of the Civil Act.

5) Determination of the defendant's assertion of false conspiracy

Furthermore, this paper also examines the defendant's assertion that the registration of cancellation of ownership transfer registration of this case is consistent with the substantive relationship, since the contract of this case becomes invalid as a false conspiracy

A) Facts of recognition

(1) The economic situation of Nonparty 1 (the Nonparty 1) at the time of the instant sales contract

① On November 11, 1983, Nonparty 1 (the Nonparty 1 (the Nonparty 1) established and operated the Seoul Climate Hospital. On July 4, 1998, Nonparty 1 suspended the said hospital on the grounds that the said hospital’s financial condition rapidly falls short of its financial status, etc. On the basis of the 1997 IMF crisis, and on December 21, 1998, Nonparty 1 (the Nonparty 1) registered the Seoul Climate Hospital as the subject of credit management.

② On June 21, 200, 200, Jeon Jae-won filed a lawsuit, such as a royalty, against the Seoul Amateur Hospital and the non-party 1 (the counter-party 1) (the counter-party 1) and received a final and conclusive judgment to pay KRW 3.5 billion and damages for delay thereof, around February 17, 2001.

③ On December 2, 2002, the former Lease applied for a compulsory auction on part of the real estate owned by Nonparty 1 (hereinafter “Nonindicted Party”) with a claim for the above usage fee, and received dividends of KRW 205,206,029 from the above auction around August 22, 2003.

④ On June 10, 2004, the new bank received a final and conclusive judgment that filed a lawsuit of loan claim against the Seoul Amateur Hospital and the non-party 1 (the counter-party 1) around October 30, 2004 to pay KRW 3.6 billion and damages for delay.

⑤ At the time of the instant sales contract, Nonparty 1’s active property at the time of the instant sales contract was KRW 1,095,096,560,560, total market value of the instant real property and KRW 2,962,04,100,00 in total, and KRW 4,057,057,100,660 in total. On the other hand, a small property did not reach the Plaintiffs’ total amount of KRW 2,619,773,530,773,273, and KRW 439,753,560 in relation to the Korea Rental Loans Co., Ltd., Ltd., including KRW 5,73,53,560 in total, KRW 203,198,420 in total, KRW 3,672,718,183 in relation to the Seoul Guarantee Insurance Co., Ltd., Ltd., and KRW 650,0039,937.

(2) Establishment of the plaintiffs and the composition of shareholders

① The Plaintiff Pakistan was established on October 31, 2001. At the time of its establishment, Nonparty 2, a partner of Nonparty 1 (hereinafter Nonparty 1) was registered as the representative director, and Nonparty 1 (the Nonparty 1: the Nonparty 1) was appointed as the representative director from August 20, 2012. The major shareholders of the Plaintiff Pakistan corporations are Nonparty 3, Nonparty 1 (the Nonparty 4 and Nonparty 2)’s wife Nonparty 1 (the Nonparty 1’s wife Nonparty 3 and Nonparty 1 (the Nonparty 1: the Nonparty 2). This is almost no change until 2011.

② 원고 쎄븐파크는 2002. 12. 24. 설립되었고, 설립 당시 위 소외 2가 대표이사로, 소외 1(대판:소외인)은 감사로, 위 소외 3, 소외 4, 소외 1(대판:소외인)의 아들 소외 5가 각 이사로 등기되었으며 2010. 3. 3.부터는 소외 1(대판:소외인)이 대표이사에 취임하였다. 원고 쎄븐파크의 주주도 소외 1(대판:소외인), 위 소외 3, 소외 4, 소외 5, 소외 2로 구성된 이후 소외 1(대판:소외인)의 지분비율이 소외 5로 이전된 것 이외에는 2011년도까지 변동이 없다.

(3) The difference between the sales price and the market price of the instant sales contract

① 소외 1(대판:소외인)은 2002. 12. 23. 원고 쎄븐파크에게 이 사건 부동산 중 25필지(562,370㎡)가 포함된 39필지(674,036㎡)를 총 매매대금 435,000,000원에 매도하였다. 그런데 앞서 살펴본 원고들과 신한은행 사이의 사해행위취소 소송에서 이루어진 부동산감정 결과에 의하면 쎄븐파크가 2002. 12. 23. 소외 1(대판:소외인)로부터 매수한 부동산 중 위 25필지가 포함된 30필지(476,134㎡)의 당시 시가 합산액은 1,108,644,720원이었다.

② 소외 1(대판:소외인)은 2004. 8. 23. 원고 쎄븐파크에게 이 사건 부동산 중 별지 1 목록 순번 8, 9의 2필지를 500,000원에 매도하였는데, 위 부동산감정 결과에 의하면 위 2필지의 당시 시가 합산액은 2,435,400원이었다.

③ 소외 1(대판:소외인)은 2005. 2. 3. 원고 쎄븐파크에게 이 사건 부동산 중 별지 1 목록 순번 11, 17, 18의 3필지를 1,000,000원에 매도하였는데, 위 부동산감정 결과에 의하면 위 3필지의 당시 시가 합산액은 1,462,340원이었다.

④ On December 30, 2002, Nonparty 1 (the Nonparty 1 (the Nonparty 1) sold 4 parcels of the instant real estate in 11,000,000 among the instant real estate at KRW 11,00,00. According to the real estate appraisal result, the aggregate amount of the market price at the time of the said 4 parcels was KRW 31,040,60.

⑤ On May 30, 2003, Nonparty 1 (the Nonparty 1: the Nonparty 1 (the Nonparty 1) sold one parcel of the instant real estate in 8,000,000 among the instant real estate at KRW 7,00. According to the real estate appraisal result, the market price at the time of the said one parcel was KRW 8,516,00.

④ On July 14, 2004, Nonparty 1 (the Nonparty 1: the Nonparty 1 (the Nonparty 1: the Nonparty 1) sold, among the instant real estate, the instant real estate, KRW 32,00,000, the total market value at KRW 31,707,600,000 at the time of two lots of land (3,068 square meters) among the real estate in this case, KRW 31,707,60,00.

(4) After the conclusion of the instant sales contract, the fact that the money, which appears to be part of the purchase price or its portion, was withdrawn or remitted from the bank account of the Japan Bank, Choi Bank, Han Bank, Nonghyup Bank, Nonghyup Bank, Korea Exchange Bank, and Solo Savings Bank, which the Plaintiffs had financially traded

[Ground of recognition] The facts without dispute, Gap evidence 6, Eul evidence 11-6, Eul evidence 17-1 through 5, Eul evidence 18-1 through 7, Eul evidence 3-1, 5, 6, 8, Eul evidence 5-4, Eul 8, 9, Eul evidence 10-1 through 5, Eul evidence 11-2, Eul evidence 12-1, 22-1, 22-1, 22-1, and 17-1 through 6, Eul evidence 17-1 through 5, Eul evidence 3-1, 5, 6, 8, 8, Eul evidence 5-5, Eul evidence 10-5, Eul evidence 12-1, 12-1, 22-1, and 12 of the first instance court, the result of the fact inquiry on Hanchil Bank, Hanchil Bank and Hanchi Bank's representative, the result of the fact inquiry on the representative of Hanchil Bank

B) Determination

According to the above facts and the grounds for such recognition, the following circumstances can be seen as follows: ① In other words, in view of the organization of organization and shareholder of the Plaintiffs, Nonparty 1 (in fact, Nonparty 1) actually controlled the Plaintiffs, and Nonparty 1 (in fact, Nonparty 1) enjoy economic benefits of the Plaintiffs. ② Nonparty 1 (in fact, Nonparty 1) sold the instant real estate to the Plaintiffs at a price considerably lower than the market price, such as selling the land at a price that is less than 20% of the market price, despite the fact that it was extremely excessive debts, at a very low level than the market price. ③ There is no financial data to deem that the Plaintiffs paid the purchase price of the instant real estate to Nonparty 1 (in fact, Nonparty 1).

According to the above circumstances, it is reasonable to view that the non-party 1 (the non-party 1) completed the registration of ownership transfer of the instant real estate in the form of sale without compensation to the plaintiffs in a special relationship with him/her and his/her relatives for the purpose of evading debts without any intention to have a substantial legal effect upon the time when the instant sales contract was concluded. Therefore, the instant sales contract constitutes a false declaration as a fictitious one of the parties with a special intention to

C) Sub-determination

Therefore, since each transfer registration of ownership completed on the instant real estate based on the instant sales contract is null and void, the registration of cancellation of ownership transfer of this case, which was restored to the ownership of Nonparty 1 (the Nonparty 1) by cancelling all of them, is consistent with the substantive legal relationship.

6) Therefore, the defendant's defense cannot be accepted for all reasons.

2. Conclusion

Therefore, the plaintiffs' claims in this case are all dismissed due to the lack of grounds, and the judgment of the court of first instance, which has different conclusions, is unfair, and all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.

[Attachment]

Judges Cho Jong-dae (Presiding Judge)