Whether a person entitled to provisional registration may file a petition for cancellation of ownership transfer registration in subrogation of the owner.

It is reasonable to view that a person entitled to provisional registration can not file a request for cancellation of a cause without registration on behalf of the owner.

Article 404 of the Civil Act

Plaintiff

Defendant 1 and two others

Gwangju District Court of the first instance (72 Gohap575)

The defendants' appeals are dismissed.

The costs of appeal shall be borne by the defendants.

As the principal claim,

Defendant 2 and 3 perform the procedure for cancellation registration of ownership transfer registration as of July 6, 1972 by the Gwangju District Court No. 1511 as to the land listed in the attachment No. 1, Defendant 1 as to the land listed in the attachment No. 15947 as of July 15, 1972 and the land listed in the attachment No. 3 as to the registration of ownership transfer as of the same court No. 15948 as to the land listed in the attachment No. 1, 1972.

Litigation costs shall be borne by the defendants.

As a preliminary claim,

As to the land listed in the attachment No. 23, Defendant 1, as to the land listed in the attachment No. 9577 of May 4, 1972, Defendant 2 and Defendant 3, as to the land listed in the attachment No. 23, agreed to implement the procedure of recovery registration of provisional registration for preserving the right to claim transfer of ownership, which was cancelled by Nonparty 1 by the Seoul District Court No. 3858 of Dec. 2, 1971.

Litigation costs shall be borne by the defendants.

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

The main claim shall be examined.

With respect to the land set forth in the annexed Table 1, 2, and 3, there is no dispute between the parties that the registration was made in order to preserve the right to claim ownership transfer registration as it was received by Defendant 2, 3, and Defendant 1 on December 2, 1971, as stated in the purport of the claim from Nonparty 1, as to the land set forth in the annexed Table 1, 2, and 3, and that the registration was revoked on May 4, 1972, as the receipt of the Gwangju District Court No. 3858 on December 2, 1971, when Nonparty 1 was owned by the non-party 1, and that the registration was made in the name of the plaintiff for the preservation of the right to claim ownership transfer registration. Therefore, the plaintiff's right to claim for the cancellation of each ownership transfer registration on behalf of the non-party 1, the owner as the provisional registration holder, and thus, the plaintiff has completed the provisional registration

Then, as seen earlier, although Nonparty 2 was found to have cancelled the provisional registration under the Plaintiff’s name by using the documents necessary for the procedures for cancellation of provisional registration, whether the Plaintiff may request the Defendants to cancel the ownership transfer registration on behalf of the owner who is the right holder of the provisional registration;

The provisional registration for the preservation of the right to claim ownership transfer registration is only effective to preserve the order in the case of the principal registration, and it cannot be deemed that a real right right takes place or a right to claim ownership transfer registration takes place immediately, and the provisional registration is made, and it does not interfere with the disposal of the owner, and in the case of the execution of the principal registration procedure by the registration, the transfer registration of ownership in the name of a third party, which was made after the provisional registration, is placed on the name of the third party that should be cancelled ex officio by the registration officer regardless of the validity of the process, in view of the fact that the provisional registration is merely a right to claim ownership transfer registration, it is reasonable to deem that the owner cannot request the cancellation of the cause registration on behalf of the owner. Therefore, it is unnecessary to determine the remaining points.

Judgment on the Preliminary Claim;

The fact that provisional registration of the plaintiff's name with respect to the land in attached Forms 1, 2, and 3 is cancelled is the same as the previous recognition, and the fact that Gap evidence Nos. 4 through 7, which is the official document of evidence Nos. 8, which is the official document of evidence Nos. 9,10, 11-2, and 3, submitted as the witness's testimony and verification object, is recognized by the non-party No. 3's testimony, the non-party No. 2 can recognize the fact that the plaintiff's seal and the official seal, etc. of the head of the Dong-dong in Gwangju-si are forged and falsified, and there is no other evidence to reverse the above recognition.

In this case, Nonparty 1, the owner at the time of the above provisional registration as to the land of this case, is obligated to implement the procedure for the recovery registration of the plaintiff's provisional registration cancelled without any cause. Since the defendants who acquired ownership after the above provisional registration are deemed to be a third party having interests in the registration under Article 75 of the Registration of Real Estate Act, the defendants who acquired ownership after the above provisional registration are obligated to accept the procedure for recovery registration regardless of good faith, bad faith, and regardless of the existence and degree of damages to be suffered by the recovery registration

Therefore, in registering the recovery of provisional registration as above, the plaintiff's preliminary claim seeking the consent against the defendants is justified, and the main claim is dismissed without merit. The judgment of the court of first instance that shares the result is just and without merit, and the appeal by the defendants is dismissed, and the costs of appeal are assessed against the defendants, who are the losing parties. It is so decided as per Disposition.

[Attachment List omitted]

Judges Park Young-young (Presiding Judge)