[1] In a case where the registration procedure completed upon the application of the applicant for registration does not fall under subparagraphs 1 and 2 of Article 55 of the former Registration of Real Estate Act, whether the applicant for registration may seek cancellation of the registration by means of objection under Article 178 of the former Registration of Real Estate Act (negative), and the meaning of “case where the registration is not completed” under Article 55 subparag. 2 of the former Registration of Real Estate Act

[2] In a case where a provisional disposition creditor files an application for the registration of ownership transfer with a final and conclusive judgment in favor of the principal case, whether an application for cancellation of registration in the name of a third party made after the registration of provisional disposition can be filed simultaneously (affirmative), and in this case, whether a correction registration in the meaning of partial cancellation should be made where the subject of cancellation is a part of the registration of the entire real estate (affirmative

[3] In a case where a provisional disposition creditor Gap filed an application for a registration of the establishment of a right to collateral security with regard to the whole real estate under Byung's name "mortgage 5/100 shares" for a registration of the establishment of a right to collateral security for the purpose of registering the establishment of a right to collateral security with regard to Eul's 5/100 shares after the registration of provisional disposition was completed, the case holding that the order of the court below which accepted Byung's objection is erroneous in the misapprehension of legal principles

[1] Where a registrar makes an active disposition that has completed the registration procedure upon application of an applicant for registration, even if such disposition is unfair, he/she may not seek cancellation by means of objection pursuant to Article 178 of the former Registration of Real Estate Act, regardless of the dispute over the validity of registration due to a lawsuit, unless it falls under Article 55 subparag. 1 and subparag. 2 of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201; hereinafter “former Registration of Real Estate Act”). Article 5 subparag. 2 of the former Registration of Real Estate Act refers to a case where it is evident that the legal nature of the application for registration cannot be permitted by the purport of the application itself.

[2] Where a provisional disposition creditor files an application for the registration of ownership transfer with a final and conclusive judgment in the principal case (or a protocol of mediation, protocol of protocol, etc. that can be deemed identical thereto), an application for cancellation of the registration in the name of a third party, which was made after the provisional disposition registration, along with an application for ownership transfer registration, may be cancelled at the same time if the registration in the name of the third party is completed after the provisional disposition registration. In this case, where the subject matter to be cancelled due to a conflict with the judgment in favor of the preliminary disposition is a part of the registration in the whole real estate, the registration shall be de facto cancelled, unless there are special circumstances, but the form of registration shall be made

[3] In a case where a provisional disposition creditor Gap filed an objection against the disposition of a mortgagee Byung, in accordance with the decision in lieu of the conciliation of "the content that ownership of 45/100 shares among the real estate owned by Eul is to be transferred" which became final and conclusive in a lawsuit on the merits, and as a result, as the registration was completed in accordance with the contents of the application for the registration of a mortgage correction with the object of the registration of a collateral security for 5/100 shares of Eul's 5/100 shares after the registration of a collateral security, the court held that Gap filed an objection against the disposition of a mortgagee Byung, etc., on the ground that the registration of a collateral security holder Byung's 45/100 shares in line with the provisional disposition among the registration of a collateral security under Byung's name was applied for the registration of a collateral security holder's 5/100 shares after the registration of a collateral security holder was completed, the court below erred in the misapprehension of legal principles as to the registration of partial cancellation.

[1] Article 5 subparagraph 1 (see current Article 29 subparagraph 1), Article 5 subparagraph 2 (see current Article 29 subparagraph 2), Article 178 (see current Article 100) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201); Article 178 (see current Article 100) / [2] Articles 32, 171 (see current Article 57 (1)) of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201) / [3] Articles 32, 5 subparagraph 1 (see current Article 29 subparagraph 1), Article 29 subparagraph 2 (see current Article 29 subparagraph 2 (see current Article 29 subparagraph 2), Article 171 (1) and Article 170 (1) (see current Article 170 (1)) of the former Registration of Real Estate Act)

[1] Supreme Court Order 95Ma1700 dated March 4, 1996 (Gong1996Sang, 1189) Supreme Court Order 99Ma4 dated January 7, 200 (Gong2000Sang, 547)

Appellant (Law Firm Han-ro, Attorneys White-in et al., Counsel for the plaintiff-appellant)

Suwon District Court Order 2010Ra1162 dated June 14, 2011

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of reappeal are examined.

1. Where a registrar takes an active disposition upon the application of an applicant for registration, even if such disposition was unfair, he/she shall not seek cancellation thereof by means of objection pursuant to Article 178 of the former Registration of Real Estate Act, aside from the dispute over the validity of registration in a lawsuit, unless it falls under subparagraphs 1 and 2 of Article 55 of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201; hereinafter “former Registration of Real Estate Act”). The term “where a case is not registered” in subparagraph 2 of Article 55 of the former Registration of Real Estate Act refers to cases where it is obvious that the application for registration cannot be legally permitted by the purport of the application itself (see Supreme Court Order 95Ma1700, Mar. 4, 1996).

Meanwhile, where a provisional disposition creditor files an application for the registration of ownership transfer with a final and conclusive judgment in the principal case (or a mediation protocol, protocol, protocol, etc. that can be deemed identical thereto), if the registration in the name of a third party has been made after the provisional disposition registration, an application for cancellation of the registration in the name of a third party, which was made after the provisional disposition registration, may also be cancelled at the same time with the above application for ownership transfer registration. In such cases, where the subject matter to be cancelled due to a conflict with the judgment in favor of the court in favor of the provisional disposition is part of the whole real estate, the registration shall be de facto cancelled, unless there are special circumstances, but the registration form shall be followed by the registration

2. According to the reasoning of the order of the court below and records, the re-appellant and the non-applicant 1 were married, but they filed a lawsuit for divorce and division of property against the non-applicant 1, Sungwon District Court support 2009Dhap287. The real estate of this case was owned by non-applicant 2, and the Re-Appellant had the right to claim division of property on September 21, 2006 from Suwon District Court support 2006. The non-applicant's order to prohibit disposal of shares out of the real estate of this case was issued provisional disposition 45/100 on September 25, 2006. The non-applicant's application for provisional disposition was rejected on September 28, 2006. The non-applicant's order to cancel the registration of the non-applicant's share of this case was non-applicant 1,80,000 won since the non-applicant 200,000 won of the maximum debt amount was established on October 28, 2009.

3. In light of the legal principles as seen earlier, the lower court’s determination is difficult to accept for the following reasons.

In the principal case of provisional disposition, the Re-Appellant's decision to substitute for the adjustment that the ownership of 45/100 shares among the real estate of this case is to be transferred by the non-applicant No. 2. Thus, it is reasonable to view that the Re-Appellant, who is the right holder of provisional disposition, applies for a registration of partial cancellation in order to seek the cancellation of 45/100 shares in conflict with the provisional disposition of this case, among the registration of the establishment of a neighboring mortgage of this case in the name of the applicant, which was completed after the registration of the provisional disposition of this case, when applying for the registration of ownership transfer as to the above shares. In addition, for the registration of partial cancellation

Therefore, so long as the application for registration of re-appellant of this case cannot be seen as a case where it is obvious that the application for registration of re-appellant of this case cannot be permitted by the purport of the application itself, a registrar cannot dispute as to the method of objection against the disposition by a registrar under Article 178 of the former Registration of Real Estate Act, unless he accepted the application for registration of re-appellant

Nevertheless, unlike the aforementioned legal principles, the lower court cited an objection against a disposition by a registrar on the erroneous premise that registration of partial cancellation is exceptionally permissible only in cases of registration of correction due to a party’s error or mistake by a registrar. In so doing, the lower court erred by misapprehending the legal doctrine on objection against a disposition completed by a registrar upon application and on registration of partial cancellation, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the order of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)