[1] In a case where a principal registration has been made on the basis of provisional registration, the standard time to determine whether a fraudulent act requirement has been met (=the time of legal act which caused the provisional registration)

[2] In a case where Gap completed a provisional registration on the ground of a pre-sale agreement for the purchase and sale of his own real estate for the purpose of securing Eul's obligation, but Gap who was in excess of his obligation entered into a sales contract with Eul for the said real estate and completed the principal registration on the ground of provisional registration on the ground of a sales contract, the case holding that the court below erred in the misapprehension of legal principles in holding that

[1] Article 406 (1) of the Civil Act / [2] Article 406 (1) of the Civil Act, Article 2 and Article 3 of the Provisional Registration Security Act

[1] Supreme Court Decision 97Da51919 delivered on March 10, 1998 (Gong1998Sang, 988) Supreme Court Decision 99Da2515 delivered on April 9, 199 (Gong1999Sang, 861) Supreme Court Decision 2000Da73377 delivered on July 27, 2001 (Gong2001Ha, 1941)

Plaintiff

Defendant

Busan District Court Decision 2010Na18710 Decided November 29, 2012

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan District Court Panel Division. The plaintiff's appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the defendant's second ground for appeal

On December 15, 2006, the lower court recognized that the instant sales contract was concluded between the Defendant and the Nonparty on December 15, 2006 with respect to the purchase and sale reservation (hereinafter “the instant purchase and sale reservation”) which was concluded between the Defendant and the Nonparty on December 15, 2006, to secure the Nonparty’s obligation to the Defendant. However, the sales contract concluded on May 15, 2009 between the Defendant and the Nonparty (hereinafter “the instant sales contract”) was concluded as a substitute for the Nonparty’s repayment of obligation to the Defendant, and its purpose differs from each other, it cannot be deemed that the instant sales contract was concluded only formally by the Defendant to exercise the right to complete the purchase and sale reservation based on the instant purchase reservation, and recognized that the instant provisional registration based on the instant purchase and sale reservation (hereinafter “the instant provisional registration”) was used by the method to implement the procedures for ownership transfer registration pursuant to the instant sales contract, and determined that the instant sales contract was a legal act separate from the instant provisional registration, and determined that it was the only the Nonparty’s property transfer as the instant sales agreement to the Plaintiff.

However, such determination by the court below is difficult to accept for the following reasons.

Where a principal registration has been made on the basis of a provisional registration, whether a juristic act which is the cause of a provisional registration and a juristic act which is the cause of a principal registration meet the requirements for a fraudulent act shall be determined at the time of the juristic act which is not clearly different (see, e.g., Supreme Court Decisions 97Da51919, Mar. 10, 1998; 99Da2515, Apr. 9, 199; 2000Da73377, Jul. 27, 2001).

According to the reasoning of the judgment below and the evidence duly admitted by the court below, the defendant lent KRW 65,00,00 to the non-party on November 2006, and completed provisional registration of this case on the ground of a pre-sale agreement as of December 15, 2006. After that, the non-party delayed the payment of the above loan debts, he can be acknowledged that he performed the principal registration procedure based on the provisional registration of this case for the repayment of the above loan debts to the defendant on May 15, 2009. Thus, the sales contract of this case was made for the collection of the secured obligation of this case, a provisional registration which was made provisional registration as to real estate for the purpose of securing the claim security. According to Article 2 of the Provisional Registration Security Act, if the debtor fails to pay the debt until the maturity date, the provisional registration security right holder can not obtain ownership ownership of the real estate after the provisional registration of this case was executed on 200 days as of the date of the provisional registration of this case.

In light of the above facts in light of the legal principles as seen earlier, the sales contract of this case, which is the cause of the principal registration, cannot be deemed as clearly different from the pre-sale agreement of this case, which is the cause of provisional registration. Thus, whether the requirements for fraudulent act are satisfied should be determined at the time of the pre-sale agreement

Nevertheless, solely for the reasons indicated in its holding, the court below deemed the sales contract of this case as a separate juristic act and determined whether it satisfies the requirements for fraudulent act as of the time of the instant sales contract. Thus, the court below erred by misapprehending the legal principles as to the establishment of fraudulent act in the principal registration based on provisional registration, thereby affecting the conclusion of the judgment. Therefore, the defendant'

2. Plaintiff’s ground of appeal

The plaintiff's ground of appeal is that the court below's finding that the defendant succeeded to KRW 36,50,000 for the lessee of a building not registered on the land of this case while ordering the partial cancellation of the sales contract of this case and the compensation for the value thereof, and deducted this from the amount of compensation for value is erroneous in the incomplete hearing and in violation of the rules of evidence. However, as long as the judgment below which recognized the establishment of a fraudulent act on the ground as above is reversed, the plaintiff's ground of appeal on the different premise is not acceptable

3. Conclusion

Without examining the remaining grounds of appeal by the Defendant, the part against the Defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Sang-hoon (Presiding Justice)