Where the registration of cancellation of real estate is void automatically, a third party who has been registered thereafter shall not inquire in good faith or bad faith, and shall accept the procedure for registration of cancellation by the person entitled to registration.

Where registration is cancelled without the intention of the person entitled to make a registration and the cause of cancellation thereof becomes null and void, a third party who has an interest in the registration is obligated to accept the procedure for recovery registration of the person entitled to make a registration without asking his/her good faith and bad faith.

Article 50 of the National Tax Collection Act

2011Gahap80970 Registration, etc. of cancellation of the registration of creation of a mortgage

JAA

KimB 7 others

November 24, 2011

February 7, 2012

1.For the plaintiff, as to real estate in the Schedule 1, 2:

A. Defendant KimB and Jung-CC implement each procedure for recovery registration of the right to collateral security (3) completed on December 12, 2008 by the Daegu District Court Decision 26888, which was revoked on June 10, 2010; the registration of creation of collateral security (63603) which was completed on December 12, 2008 by the same registry office; and the registration of the right to collateral security (3) which was completed on January 27, 2010 by the receipt No. 3541;

B. Defendant KimB performed the respective procedure for registration of recovery of traditional machines, which was completed on January 27, 2010 by the Daegu District Court, Daegu District Court Decision 26889, which was revoked on June 10, 2010 by the Act No. 26889, which was completed on February 9, 2009 by the Act No. 4917, which was completed on February 9, 2009, and which was completed on January 27, 2010 by the Act No. 3542.

C. The defendant Korean Bank, the Small and Medium Enterprise Distribution Center, the Republic of Korea, the Korea Exchange Bank, the Korea Trade Insurance Corporation, the Korea Credit Guarantee Fund shall, upon each of the above registrations of recovery, express its consent.

2. The costs of lawsuit are assessed against the Defendants.

It is like the Disposition

1. Basic facts

A. Defendant KimB and JungCC are the right holder who has succeeded to one half of the real estate listed in the separate sheet 1, 2 (the real estate listed in the separate sheet 1 is the site and the real estate listed in the separate sheet 2 is the ground building. The two real estate are all the real estate of this case, and when referring respectively, 'the site of this case' or 'the building of this case'). Meanwhile, Defendant KimB is the representative director of Nonparty DD International Persons Co., Ltd. (hereinafter referred to as 'Drack Internationals' in the following).

B. On December 12, 2008, Defendant KimB and Jung-CC completed the registration of the establishment of a collateral security right in the name of the Defendant, the Small and Medium Enterprise Distribution Center (hereinafter referred to as the “Defendant Small and Medium Enterprise Distribution Center”) 500 million won in the future, and Defendant KimB completed the registration of the establishment of a collateral security right in the name of the debtor, DB, and on February 9, 2009, the registration of the establishment of a collateral security right in the name of the debtor, 60 million won in terms of the shares in the real estate (hereinafter referred to as the “EE home shopping”), and the registration of the establishment of a collateral security right in the name of the debtor, DB, and the registration of the establishment of a collateral security right in the name of the debtor, 2000 won in the name of the debtor, 30 billion won in the name of the debtor, 1000 won in the name of the debtor, 1000 won in the name of the debtor, 200.

(The following table omitted):

D. Defendant KimB’s conviction

Defendant KimB was prosecuted on the charge of fabrication of private documents, etc. and was tried on September 29, 201 by the Seoul Central District Court on August 29, 201 and was convicted of 2 years of suspended execution (Seoul Central District Court 201Da3260) and continued in the appellate trial.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 7, and the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiff's assertion

Since Defendant KimB forged and deleted the power of attorney, etc. in the name of the Plaintiff without obtaining the Plaintiff’s permission, the registration of this case is null and void. Therefore, Defendant YB and JungCC, the person responsible for registration, is obligated to implement the procedure of recovery registration of this case and Defendant KimB, the registration of this case, respectively. The remaining Defendants are third parties with interest in the registration, and thus, are obligated to express their consent to each registration of recovery of cancellation.

B. Determination

1) The part of the claim against Defendant KimB and Jung-CC

In light of the purport of Gap evidence No. 7 and the whole pleadings, defendant KimB may, notwithstanding the fact that the registration of this case was completed, conclude that the plaintiff's right to registration in the name of the plaintiff is necessary to obtain loan counseling from the financial institution on June 10, 2010, and may recognize the fact that the registration of this case was cancelled by forging several delegations in the name of the plaintiff for the purpose of cancelling the registration of this case on June 10, 2010, and by exercising the right to registration of this case around that time. Therefore, since the cancellation of the registration of this case is null and void, the defendant KimB and JungCC as the owner of this case's real estate at the time of cancellation, who is the person responsible for registration of this case's restoration registration of the registration of this case's 10 billion won, is not obliged to obtain permission of the plaintiff Lee Jong-B to repay the above registration of this case's right to registration of this case's 20 billion won from the real estate of this case, and there is no evidence that the plaintiff's right to registration of this case's loan.

2) The remainder of the defendants' claims

As can be seen from the above facts, each of the above registrations in the name of the defendant KimB was terminated after the cancellation of the registration of this case. As such, the remaining defendants are interested in the registration that is likely to incur damage by the cancellation registration. However, in cases where the registration of this case is cancelled without the intention of the person entitled to registration and becomes null and void, the third party with an interest in the registration is obligated to give consent necessary for the procedure for the recovery registration of the person entitled to registration (see Supreme Court Decision 95Da39526, Sept. 30, 1997) without asking his good faith and bad faith (see Supreme Court Decision 95Da39526, Sept. 30, 1997). Thus, the remaining defendants are obliged to give consent to the procedure for recovery registration of this case, regardless of good faith. Since the registration of this case was cancelled by the defendant KimB, the right to collateral security was invalid, and thus, the registration of this case cannot be seen as null and void before the registration of this case is invalidated.

3. Conclusion

The plaintiff's respective claims against the defendants are justified, and all of them are accepted. It is so decided as per Disposition.