The validity of the cancellation registration made without attaching a written consent, etc. from a third party interested in the registration;

Registration of cancellation which became invalid in relation to the above third party without a written consent of the third party or a certified copy of a court judgment which can be asserted against the above third party, and even if the above third party participated in the execution of the procedure for cancellation registration against the person liable for restoration registration as an intervenor, this judgment cannot be deemed to be a judgment against the above third party.

Article 75 of the Registration of Real Estate Act

Supreme Court Decision 68Da1505 Decided September 24, 1968

Park Young-ho et al., Counsel for the plaintiff-appellant Park Jong-ho et al.

Republic of Korea

Seoul High Court Decision 80Na387,392 delivered on December 1, 1980

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

1. We examine the plaintiffs' attorney's grounds of appeal Nos. 1 through 5 together.

(1) According to Article 75 of the Registration of Real Estate Act, where an application for restoration of cancelled registration is filed, if there is a third party interested in the registration, a written consent or a certified copy of the court decision capable of setting up against it shall be attached to the application. Thus, even if the application for restoration registration is based on a final and conclusive judgment in favor of the person liable for the restoration registration, the registration cannot be made unless a written consent of the interested third party or a certified copy of the court decision setting up against it is attached. If the restoration registration was made, it shall be deemed as invalid in relation to the interested third party (see Supreme Court Decision 68Da1505 delivered on September 24, 1968).

According to the facts established by the court below in this case, the non-party 1 borrowed interest of 3,50,000 won from the plaintiffs on January 27, 1973 and 4.26 of that year, and provided the land as collateral, and completed provisional registration and superficies creation registration under the name of the plaintiffs, and the non-party agreed to make a promise for payment in kind to make principal registration based on the above provisional registration without any expression of intention when the above non-party becomes due. The above non-party forged the seals and required documents and cancelled the above provisional registration and superficies creation registration, and completed the above provisional registration and superficies creation registration as stated in its reasoning before the defendant and the non-party Han-ri 359-1, 3,885, again, the ownership transfer registration was completed on March 21, 197 from the above defendant and the non-party 1 and the non-party 1 and the non-party 1 were notified that the above non-party 1 and the non-party 1 were cancelled to the above provisional registration and the above provisional registration were not registered within 17180 days.1.

(2) In light of the records, the court below's examination of the evidence cooking process which was conducted in the above fact-finding is just and there is no error of law of misconception of facts due to the rules of evidence or incomplete deliberation, and even if the plaintiffs' application for the above restoration registration was made by the final judgment in favor of the non-party 1, as long as the consent of the above third party who has interests in the registration was not attached to the above defendants or the certified copy of the judgment that can oppose it, each of these registrations shall not be deemed invalid registration in relation to the above defendants, and the principal registration based on provisional registration of this invalidation shall also be deemed invalid registration, and even if the above defendants participated in the judgment against the non-party 1, it shall not be deemed as a judgment that can oppose the above defendants.

(3) Furthermore, according to the facts duly established by the court below, since it is recognized that the market price of the land of this case was equivalent to KRW 9,560,250,00 at the time of the promise for payment in substitutes, and the above promise for payment in substitutes was valid under Articles 607 and 608 of the Civil Act, and it is only effective within the scope of securing the borrowed amount, but only within the extent of securing the borrowed amount. In this case, in which the plaintiffs' failure to repay the borrowed amount by Nonparty 1, as seen earlier, are satisfied, the plaintiffs' claim for the borrowed amount was fully repaid and the security right to the land of this case is extinguished. Thus, the above defendants have no obligation to consent to the registration of recovery of the plaintiffs under substantive law, and the plaintiffs' registration of recovery and the principal registration of this case are not consistent with the substance.

(4) Thus, the plaintiffs cannot claim ownership of the land of this case against the above defendants. Among the subject matter of the lawsuit of this case, the original adjudication (B) building at the time of original adjudication is identical to the original adjudication that the plaintiffs did not transfer their ownership as a unregistered building, and even if the building was provided as a collateral with the land of this case, it is evident that the plaintiffs have no right to seek an explanation as long as the obligation which is the security cause is extinguished as long as the obligation which is the security cause is extinguished. Rather, the plaintiffs are obliged to perform the procedure of cancellation registration against the defendant, who is the co-owner, for the remaining land except the land transferred to the non-party P

(5) The original judgment determined to the effect as above is justifiable, and there is no error in the misapprehension of the legal principles under Article 608 of the Civil Act, or in the misapprehension of the legal principles.

2. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)