[Defendant-Appellant] K&C Co., Ltd. (Law Firm Freeboard, Attorney Park Ba-young, Counsel for defendant-appellant-appellant)

Defendant (Attorney Hwang Woo-soo, Counsel for defendant-appellant)

April 28, 2016

Daegu District Court Decision 2015Ra1720 decided October 6, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

In the first place, the defendant will implement the procedure for the cancellation registration of each transfer of ownership, which was completed on July 16, 2010 by the Daegu District Court and the Daegu District Court and the 25688, which was completed on May 3, 2012 by the receipt of No. 25688, with respect to the real estate stated in the separate sheet to the non-party 1 (resident registration number omitted) and the non-party 1 (resident address omitted).

Preliminary, the defendant will express his/her intention to accept the procedure for the registration of recovery of provisional attachment entry, which was completed on September 16, 2003 by the Daegu District Court, which was completed on August 21, 1989 by the receipt of No. 26297 as to the real estate stated in the separate sheet, and completed on September 16, 2003 by the registration of provisional attachment entry entry, which was completed on September 16, 203.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Scope of the judgment of this court;

The court of first instance dismissed the plaintiff's primary claim and accepted the conjunctive claim, and the defendant appealed against it. Thus, this court is to judge only the plaintiff's conjunctive claim.

2. Basic facts

A. Plaintiff’s claim against Nonparty 1

1) On July 10, 2003, the Daegu District Court 2003da42814, filed a lawsuit against the non-party 1, etc. for the claim for the transfer amount, and rendered a judgment on July 10, 2003, "the non-party 1 jointly and severally with the non-party 4 and the non-party 5, 125 million won per annum from August 16, 1997 to December 31, 1997; the 35% per annum from the following day to July 12, 1998; the 27% per annum from the next day to November 24, 1998; and the 20% per annum from the next day to April 14, 199; and the 203% per annum from the next day to 2038."

2) On October 31, 2003, Han-man transferred the above claim to the Plaintiff and notified Nonparty 1, etc. of the assignment of the above claim. Thereafter, the Plaintiff applied for a payment order for part of the above transfer amount to Nonparty 1, etc. as Seoul Central District Court 2013 tea 43898, and on June 27, 2013, “Nonindicted 1, jointly and severally with Nonparty 4 and Nonparty 5, jointly and severally with the Plaintiff KRW 20 million and its amount to the Plaintiff from August 16, 1997 to December 31, 1997; KRW 35% per annum from the next day to July 12, 1998; KRW 27% per annum from the next day to November 24, 1998; and KRW 35% per annum from the next day to the date of repayment to April 25, 199; and KRW 30,000 per annum from the next day to the date of payment order.”

(b) Changes in legal relationship on the register concerning real estate listed in the attached list;

1) The real estate listed in the separate sheet (hereinafter “instant real estate”) was originally owned by Nonparty 1. On August 21, 1989, Nonparty 1 completed the provisional registration of the right to claim transfer of ownership on August 21, 1989 with respect to the instant real estate against Nonparty 2 on the ground of a trade reservation (hereinafter “instant provisional registration”).

2) On September 16, 2003, Korea District Court 2003Kadan4217, Daegu District Court 2003Kadan4217, and applied for provisional seizure against Nonparty 1, and the provisional seizure was decided on September 16, 2003. Accordingly, on the same day, the provisional seizure registration of the instant real estate was completed with the claim amounting to KRW 327,747,87, and the provisional seizure registration of the creditor’s name bond (hereinafter “the provisional seizure registration of this case”).

3) On September 14, 2004, Nonparty 3 completed the additional registration with respect to the provisional registration of this case on September 10, 2004, as to the transfer of ownership transfer claim based on contract transfer on September 10, 2004. On the same day, Nonparty 3 completed the principal registration of this case on September 10, 2004 with respect to the real estate of this case on the same day (hereinafter “instant principal registration”). Accordingly, the registration of provisional attachment on the part of Han-si was ex officio on November 8, 2004.

4) The Defendant, as Nonparty 1’s children, completed the registration of ownership transfer on July 16, 2010 with respect to the instant real estate on the grounds of sale on July 15, 2010 (hereinafter “instant registration of ownership transfer”).

5) C&C Co., Ltd applied for a voluntary auction on the instant real estate at Daegu District Court Decision 201Ma371, Daegu District Court Decision 201Hu371, and received a decision to commence voluntary auction on January 24, 2011. The Defendant sold the instant real estate during the said voluntary auction procedure and completed the registration of ownership transfer on the same day (hereinafter “instant second ownership transfer”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 and 3 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings

3. The parties' assertion

A. The plaintiff

Since the right to conclude the purchase and sale reservation of the instant real estate has ceased to exist at the expiration of the exclusion period of 10 years, the instant provisional registration became null and void. Accordingly, the instant provisional registration transferred to Nonparty 3 and the instant principal registration based on the said provisional registration is null and void, and the instant provisional seizure registration cancelled unlawfully and wrongfully shall be restored accordingly. Since the Defendant, as the title holder of the instant real estate, has an interest in the registration procedure for the recovery registration of the instant provisional seizure, he/she is obligated to accept the above recovery registration procedure

B. Defendant

The main registration in the name of Nonparty 3 is not based on the right to complete the reservation of Nonparty 2, but in fact based on a new sales contract between Nonparty 1 and Nonparty 3, and Nonparty 1 cooperates with Nonparty 3 in transferring the ownership of the instant real estate without any objection. As such, the main registration based on the provisional registration in this case cannot be deemed null and void.

Even if the cancellation registration of the provisional seizure of this case is null and void, the defendant acquired the real estate of this case in the voluntary auction procedure on May 3, 2012 and completed the registration of transfer of ownership of this case, so the registration of provisional seizure of this case shall be cancelled in accordance with the above voluntary auction, so the registration of cancellation of the provisional seizure of this case shall be valid as a registration consistent with the substantive relations

4. Determination

A. Whether provisional registration of this case and principal registration of this case are invalid

In cases where a provisional registration has been completed for preserving a claim for ownership transfer registration on the basis of a pre-sale of real estate and a provisional registration for preserving a claim for ownership transfer registration has been completed, such provisional registration shall lose its effect and be cancelled if the right to conclude the pre-sale is extinguished. However, if the owner of such real estate has agreed with a third party to make a new pre-sale agreement and to use the provisional registration whose effect has already been lost for preserving a claim for ownership transfer registration based thereon, and actually completed the additional registration prior to such provisional registration, a third party who has completed the additional registration prior to such provisional registration may at any time oppose the claim for cancellation of the provisional registration by asserting the agreement on the utilization of the above provisional registration against the owner of the real estate. Provided, That with respect to a person who has an interest in the register prior to such provisional registration prior to such provisional registration, the validity of such provisional registration cannot be asserted by virtue of the agreement on the utilization of the provisional registration (see Supreme Court

In light of the above facts, the right to conclude a pre-sale contract of this case on the provisional registration of this case has expired after the expiration of the exclusion period of 10 years from August 21, 1989, which is the date of reservation. As such, the provisional registration of this case lost its effect, and the principal registration which was completed on the provisional registration which has already lost its effect should, in principle, be cancelled as the registration invalidation of cause.

However, in full view of the statement No. 3 and Non-party 1’s testimony of the first instance trial witness, it can be recognized that Non-party 1 and Non-party 3 have agreed to complete the principal registration based on the additional registration before provisional registration and the provisional registration before provisional registration. Thus, the provisional registration of Non-party 3 and the principal registration of this case shall be valid as a registration consistent with the substantive relation. However, by such utilization agreement of invalidation registration, it cannot be asserted against the plaintiff, the successor of the second instance, who completed the provisional registration before Non-party 3 completes the additional registration before provisional registration and the principal registration.

Therefore, the cancellation registration of the provisional seizure in this case is null and void since it is completed without any legal cause. Thus, notwithstanding the above cancellation registration, the plaintiff still holds the right as a person holding the provisional seizure. Ultimately, the defendant is a third party who is the owner of the real estate in this case and has an interest in the registration that is likely to incur damages if the above provisional seizure registration is restored. Therefore, the plaintiff is liable to express his/her intention to accept the procedure for the restoration registration

B. Whether the registration of cancellation of provisional seizure in this case is valid

In a case where the ownership of the object of provisional seizure is transferred to a third party after the senior provisional seizure is registered, and the third party purchaser's creditor files an application for the auction in the sale procedure, the creditor of provisional seizure may receive dividends to the extent of the claim amount at the time of the decision of provisional seizure out of the proceeds of sale of the object of provisional seizure (see Supreme Court Decision 2006Da19986, Jul. 28, 2006). In this case, the registration of provisional seizure for which the previous owner is the debtor may be subject to a request for cancellation of provisional seizure. However, under the premise that the successful bidder takes over the burden of the registration of provisional seizure for which the previous owner is the debtor, the above provisional seizure may be excluded from the distribution procedure and proceeds from the sale procedure on the premise that the execution court takes over the burden of the registration of provisional seizure for which the previous owner is the debtor. As such, if the successful bidder takes over the above provisional seizure registration, the effect of provisional seizure is not extinguished, and therefore, it cannot be concluded that the above provisional seizure becomes invalid merely because the registration procedure was conducted with the debtor.

In light of the above legal principles, since the provisional seizure registration of this case was illegally cancelled at the time of the voluntary auction procedure, the plaintiff could not participate in the dividend procedure, so the registration of this case should not be deemed to have been cancelled as a matter of course in the above voluntary auction procedure. Therefore, the defendant's assertion on this part is without merit

5. Conclusion

If so, the plaintiff's conjunctive claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Permitted-gu (Presiding Judge)