to carry out the procedures for provisional registration based on a invalid sales contract and for cancellation of principal registration

As a sales contract with a corporation not entitled to acquire farmland ownership as its purchaser, it constitutes a contract with the original objective of payment, which is null and void and void, and constitutes a provisional registration, transfer registration, or principal registration, which is based on an invalid sales contract, and constitutes a registration of invalidity of cause, and thus, a provisional registration or principal registration may be sought for the cancellation of provisional registration

201Gag 78275 Registration of Cancellation of Ownership

Korea

XX

July 24, 2012

August 21, 2012

1. As to the real estate listed in the separate sheet to thisA, the Defendant:

A. The provisional registration of the right to claim ownership transfer, which was completed on May 27, 1983 by Changwon District Court Kim Jong-hae registry office, No. 11764,

B. On April 8, 2011, each procedure for the cancellation of ownership transfer registration completed under No. 37384, will be implemented.

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

The same shall apply to the order.

1. Facts of recognition;

A. The PP Development Co., Ltd (hereinafter referred to as the "P development") decided to purchase the above land including the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") in order to create a golf course in a single unit, such as the golf course development business and the real estate leasing business. However, since the above land is land as farmland, it is impossible to register ownership transfer under the name of XX as land, the provisional registration was made to preserve the right to claim ownership transfer registration under the sales contract.

B. XX Development entered into a sales contract with ParkB on May 23, 1983 to purchase the instant real estate owned by ParkB at KRW 000 (hereinafter “instant sales contract”) and completed the provisional registration of the right to claim transfer of ownership on May 27, 1983 with respect to the instant real estate on May 25, 1983, in order to preserve the right to claim the transfer of ownership under the instant sales contract after full payment of the purchase price (hereinafter “instant provisional registration”).

C. The KimCC, the representative director of XX development, completed the registration of ownership transfer on June 30, 1986 with respect to the instant real estate on April 26, 1986.

D. After that, in arrears with the global income tax, capital gains tax, etc. of KimCC, the registration of seizure was completed on the instant real estate from around 1998 to around 2005 in Seosan Tax Office, Kim Sea Tax Office, and Ulsan Tax Office.

E. Thereafter, after KimCC died on June 23, 2009, thisA, the wife of KimCC, completed the registration of ownership transfer on the instant real estate on November 24, 2010 due to an inheritance by agreement division.

F. ChoD (referring to the husband of EE, who is the former director of XX development) shall receive the provisional registration of this case from XX development. On December 14, 2009, the above provisional registration was completed with respect to the instant real estate.

G. On April 8, 2011, DaD completed the registration of ownership transfer (hereinafter referred to as the "original registration of this case") based on the provisional registration of this case with respect to the instant real estate on April 8, 201, and each registration of ownership transfer under the name of KimCC and EA, which was completed after the provisional registration of this case, was cancelled.

H. While KimCC was liable to the Plaintiff for tax liability equivalent to KRW 000 against the Plaintiff, it was merely 000 won out of KRW 000,000,000, excluding senior claims, such as the right to collateral security established on the said real estate, and this is a insolvent state where the heir, other than the above real estate, did not have any financial ability to repay the above tax liability.

[Ground of recognition] A without dispute, Gap evidence Nos. 8 through 17, 20, 21 (including branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 6, Eul evidence Nos. 7-3, Eul evidence Nos. 9 through 12, 14, 15, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

A person eligible for purchase of farmland under the former Farmland Reform Act (amended by Act No. 4817, Dec. 22, 1994; hereinafter the same) is required to be a person with self-defluence or self-sustaining of farmland at the time of purchase or sale, even if he is not a farming household at the time of purchase or sale, or a person who intends to be a farming household again, and a farmer as referred to in the same Act is a natural person. Thus, even if a corporation like a stock company entered into a farmland purchase or sale contract, such corporation cannot obtain ownership as a result of the lack of certification of purchase or sale of farmland under the former Farmland Reform Act or the former Farmland Lease Management Act (amended by Act No. 4817, Dec. 22, 1994; hereinafter the same shall apply) unless there are special circumstances such as the proviso of Article 51(1) of the former Enforcement Rule of the Farmland Reform Act (amended by Act No. 4817, Dec. 22, 1994; see, 294).

In light of the above facts, the sales contract of this case, which is subject to the former Farmland Reform Act, was made by the purchaser of the instant real estate, which is farmland, as the buyer of the instant development who is unable to acquire the ownership of the instant real estate, and is null and void because it constitutes a contract with the objective of providing benefits, which is an original impossibility. The provisional registration of this case and the transfer registration of this case, and the registration of the principal registration of this case, which were completed under an invalid sales contract, shall also be deemed null and void (as seen above, so long as the sales contract of this case is deemed null and void

Therefore, the plaintiff can seek the cancellation of provisional registration and principal registration of this case which are null and void by subrogation of insolvent Lee, for the preservation of tax claims. Thus, the defendant is obligated to perform the provisional registration of this case and principal registration of this case with respect to the real estate of this case (the defendant is not entitled to accept the defendant's above assertion since he is not related to natural persons, since he is not a nature that can be invoked in this case).

B. Judgment on the defendant's argument

(1) The non-existence of subrogation claim

The defendant asserts that the transfer registration in the name of KimCC with respect to the real estate in this case is null and void when there is no certificate of farmland sale in the location office, and that the transfer registration in the name of thisA is also null and void. Thus, the plaintiff does not have a subrogation claim to be subrogated by thisA.

In the event that the registration of ownership transfer is completed with respect to farmland, it is presumed that there was a proof of the office with respect to the farmland transaction, and the fact that there was no proof since the fact was not an ex officio investigation, has the burden of proof for the claimant (Supreme Court Decision 87Meu1312 delivered on October 28, 1987).

The fact that KimCC and KimCC completed the registration of ownership transfer on April 26, 1986 with respect to the real estate of this case on June 30, 1986 is as seen above, and according to the above facts, it is presumed that there was a farmland transaction certificate in the office at the time of the above registration of ownership transfer. Thus, the defendant should prove that there was no farmland transaction certificate. As seen above, it is difficult to reverse the above presumption just by the fact that KimCC is the representative director of the PP development at the time of the above registration of ownership transfer, and there is no other evidence to acknowledge it, it is presumed that the above registration of ownership transfer has been completed lawfully. Accordingly, the defendant's above assertion is without merit.

(2) Claim for the prescription of possession

The defendant asserts that the provisional registration of this case is a valid registration that conforms to the substantive legal relationship, since the PP development has occupied the real estate of this case from ParkB on May 23, 1983 and occupied it in peace and openly with intent to own it for 20 years or longer, and acquired by prescription on May 22, 2003.

In a case where a person who acquired real estate from another person by any juristic act and acquired it from another person becomes aware that such juristic act is null and void, it shall not be generally deemed that the person had possession as an owner’s intent at the beginning of such possession (see, e.g., Supreme Court Decision 92Da37871, Jul. 16, 199

In light of the above facts, it is reasonable to view that the development was not able to acquire ownership of the pertinent real estate under the former Farmland Reform Act at the time of purchasing the instant real estate from the ParkF, and that the instant sales contract was null and void. Thus, even if they possessed the said real estate, even if they possessed the said real estate, they cannot be deemed to have possessed the said real estate with their intent to own it. Therefore, without having to consider the remaining points, the above argument by the Defendant is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.