Whether a provisional registration is subject to a creditor's right of revocation in cases where a juristic act which causes provisional registration occurs prior to a creditor's claim for revocation (negative)

Article 406(1) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Korea

Defendant corporation

Seoul Central District Court Decision 2008Na10401 Decided October 30, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below found the above non-party 2's acquisition of real estate in the name of the non-party 3 company and the non-party 2 company's provisional registration on the non-party 4 company's transfer of ownership to the non-party 2 company's non-party 6 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 3 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 3 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 3 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 2 company's non-party 3 company's non-2 company'.

2. However, we cannot accept the judgment of the court below for the following reasons.

In the event that a provisional registration has been made as a performance of a juristic act and a juristic act which causes the obligation occurred prior to the obligee’s claim to exercise the right of revocation, such provisional registration may not be subject to the obligee’s right of revocation (see Supreme Court Decision 2000Da43352, Apr. 12, 2002), barring any special circumstance, and even according to the fact-finding by the court below, Nonparty 2 agreed to provide each of the of the real estate in this case as security for the above loan obligation around June 2003, when the basic legal relations of the Plaintiff’s taxation claim against Nonparty 2 arose, and pursuant to the agreement, the provisional registration was made on the second and third real estate in this case’s provisional registration. Accordingly, the above security right contract and provisional registration cannot be subject to the obligee’s right of revocation, and it does not constitute a fraudulent act act’s obligation to Nonparty 3 as a substitute for the obligation of Nonparty 2, and thus, it does not constitute an unlawful act of establishing security right and obligation of each of the above Defendant 2.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)