The right of a right holder of a provisional registration may order the principal registration without cancellation of the registration, even if the ownership transfer registration has been passed to a third party after the provisional registration.

Even if the principal registration of transfer of ownership was passed after a provisional registration was made to a third party other than the person having the right to the provisional registration, the right to request the principal registration of the person having the right to the provisional registration cannot be deemed to be in an impossible condition, and thus the principal registration of the provisional registration may

Article 61 of the Registration of Real Estate Act, Article 62 of the Registration of Real Estate Act

Plaintiff (Counterclaim Defendant) 1 and four others (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Plaintiff’s Intervenor (Attorney Kim Jong-soo, Counsel for the plaintiff’s intervenor)

Defendant-Counterclaim (Attorney Jeong-hee et al., Counsel for the defendant-Counterclaim)

Seoul High Court Decision 65Na893, 894 delivered on March 23, 1966

The appeal is dismissed.

Of the costs of appeal, the part arising from the appeal by the plaintiffs (Counterclaim defendants) shall be borne by the plaintiffs (Counterclaim defendants) and the part arising from the participation by the plaintiffs (Counterclaim defendants) shall be borne by the supplementary intervenor.

The gist of the grounds of appeal No. 1 of the plaintiffs (Counterclaim defendant merely referred to as the plaintiffs) is that in the sales contract, the contract deposit received between the parties to the contract has the nature of the prepaid deposit. In the case of the receipt of the above contract deposit, the buyer may waive the contract deposit at any time and cancel the contract, and the seller shall at any time withhold the right to cancel the contract. Thus, the seller shall not be obliged to pay the prepaid deposit, but the seller shall only express his/her intention of termination under the intention of compensating for the amount of the prepaid deposit in the future. However, even though the court below may dismiss the plaintiff's claim on the ground that it is required to provide the performance of the contract deposit in reality, there is an error of law interpretation. However, in the case of receiving the contract deposit between the parties to the sales contract and reserving the right to cancel the contract, the mere expression of intent that the person who received the contract deposit redeems the amount of the prepaid deposit and at least the amount of the contract is required to pay the contract deposit or provide it as the non-party's justifiable objection to the contract rescission (see this case's appeal).

Determination on the ground of appeal No. 2

Even if the above non-party expressed his intention to cancel the contract for the purpose of repaying the total amount of the down payment as the seller, such declaration of intention is identical to the above mentioned above, and as long as the defendant (non-party; hereinafter simply referred to as the defendant) has lawfully confirmed the commencement of the performance of the obligation before the non-party exercises his lawful right to cancel the contract, it is obvious that the contract can not be cancelled effectively due to the non-party's provision of the performance of the down payment or the exercise of the right to cancel the contract premised on the payment deposit, and therefore, it is unreasonable in light of the legal provisions of Article 565(1) of the Civil Act, so there is no objection to criticize the original judgment due to the opposing opinion.

The judgment on the third ground for appeal as above;

Upon examining the original judgment, it can be known in this case that the non-party, in order to cancel the contract due to a double compensation for down payment, has to provide the reality of the amount of the down payment. Therefore, there is no illegality in the omission of the judgment like the theory of lawsuit in the original judgment.

As to the ground of appeal No. 4

In this case, the court below held that the court below's decision ordering the defendant to make the principal registration of ownership transfer without cancelling the ownership transfer registration for the plaintiff's supplementary intervenor without cancelling the ownership transfer registration for the plaintiff's supplementary intervenor, even if the ownership transfer registration was passed in the future of the plaintiff's supplementary intervenor after the provisional registration, even if the principal registration for the third party other than the right holder of the provisional registration, and the ownership transfer registration was passed after the provisional registration, the right to claim the principal registration for the provisional registration cannot be deemed to be in an impossible condition. Therefore, the court below's decision ordering the defendant to make the principal registration of ownership transfer without cancelling the ownership transfer registration for the plaintiff's supplementary intervenor.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Han Sung-dong (Presiding Judge) of the Supreme Court