In cases where a principal registration on the basis of provisional registration has been completed in spite of the expiration of the obligation under security provisional registration and the buyer’s ownership transfer registration has been cancelled ex officio after provisional registration, whether the buyer may directly request for the cancellation of provisional registration and the principal registration on the basis thereof as a claim for exclusion of interference based on ownership after provisional registration (affirmative)

Even though a third party who acquired ownership through a sale after a provisional registration for securing a claim for a certain real estate has been made and the principal registration for transfer of ownership based on the provisional registration is fully extinguished by paying the principal and interest on the real estate, the provisional registration on the register remains, and further the provisional registration has been made in the name of another party, the above provisional registration following the extinguishment of a secured obligation is null and void. Furthermore, the principal registration based on the above provisional registration and the provisional registration in the name of another party are null and void. Furthermore, the provisional registration in the name of the third party after the provisional registration is made ex officio by the public official upon the completion of the principal registration based on the above provisional registration is null and void, and the above third party does not still lose the status as the owner, regardless of whether the above cancellation registration is restored or not. Thus, the above third party is a claim for exclusion of interference based on ownership, regardless of whether the above cancellation registration is restored, and if the registration is cancelled by a claim for cancellation of the principal registration based on the above provisional registration and provisional registration, the public official may obtain ex officio cancellation of ownership transfer registration in the above third party name.

Article 214 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 3 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant-appellee)

Plaintiff

Defendant 1 and two others

Daegu District Court Decision 96Na3744 delivered on June 18, 1997

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

1. Even though a third party who acquired ownership through a sale after a provisional registration for securing a claim for a certain real estate has been made and the principal registration on the register remains, even if the title holder made a principal registration of transfer of ownership based on the provisional registration and made a provisional registration under another party's name, the above provisional registration after the extinguishment of a secured obligation would be deemed null and void. Furthermore, the principal registration based on the above provisional registration and the provisional registration under another party's name shall also be deemed null and void. Furthermore, the above third party's registration after the provisional registration is made ex officio by the public official upon completion of the principal registration based on the above provisional registration shall also be deemed null and void, and the above third party's status shall not still be lost since the registration for cancellation of ownership transfer registration under the third party's name after the provisional registration is made ex officio, regardless of whether the above cancellation registration is restored, and if the registration is cancelled by subrogation of the principal registration based on the above provisional registration and the provisional registration, which is invalid against the direct title holder, the public official may recover the above third party's ownership registration cancelled ex officio.

According to the reasoning of the judgment below, since the provisional registration under the above name of Defendant 1 on each of the above real estate was cancelled for securing the above defendant's obligation, the court below held that the above provisional registration under the name of the non-party 1 on each of the above real estate was invalid by ex officio by the public official of the above provisional registration, and since the provisional registration under the name of the non-party 1 on each of the above real estate was cancelled for securing the above defendant's obligation, the plaintiff purchased each of the real estate in the name of the plaintiff and deposited for full repayment of the above obligation amounting to 16,50,000 won, and the security right was extinguished by paying more than the above provisional registration under the name of the non-party 1 on each of the above provisional registration under the name of the non-party 1 on each of the above provisional registration. Since the above provisional registration under the name of the non-party 3 on each of the above real estate was cancelled, the above provisional registration under the name of the non-party 1 on each of the above real estate or the above provisional registration under the name of the non-party 1 on each of this case.

2. In addition, in light of the records, the court below is just in holding that the above non-party did not have any assertion or proof as to the non-party's insolvency, and it cannot be said that there was an error in failing to exhaust all necessary deliberations.

3. According to the records, the plaintiff's statement at the second date for pleading of the court below stated to the effect that "to seek cancellation of provisional registration and principal registration in the name of the above defendant in order to recover the security interest due to the extinguishment of the security right due to the above repayment deposit as an obligor of a loan contract for consumption and provisional registration contract between the person abroad and the defendant 1, and in accordance with the above agreement with the defendant, as the secured party," (Supplementary part of the preparatory documents dated September 3, 1996, which is the record 520 pages). The plaintiff's statement to the effect that "the above purport that repayment of the secured obligation and claim cancellation of provisional registration shall be made in accordance with the agreement between the plaintiff and the above defendant, or that provisional registration based on provisional registration and provisional registration in the name of the above defendant 2 shall be null and void, and therefore, it shall be sufficient to view that the plaintiff's statement to the effect that the above provisional registration and principal registration shall be cancelled as a result of the above provisional registration and principal registration shall not be clearly affected by the judgment.

4. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)