Changwon District Court 2009Kadan60155 ( December 03, 2010)

It is recognized that the acquisition of ownership based on the provisional disposition by the provisional disposition authority is effective.

The right to be preserved for the registration of the provisional disposition company and the subject-matter of each subject-matter of lawsuit are recognized to be the identity of the basis for the claim, so that the provisional disposition authority can deny the validity of the act of disposal in conflict with the provisional disposition by completing each registration of ownership transfer upon winning in the lawsuit on the merits, and even if the registration of ownership transfer was cancelled unlawfully, the acquisition

2011Na218 Consent to Registration for Recovery of Ownership Cancellation

AA General Construction Co., Ltd. and one other

KimB 2 others

Changwon District Court Decision 2009Da60155 Decided December 3, 2010

November 8, 2012

January 24, 2013

1. Of the judgment of the first instance court, the part regarding the plaintiffs KimB, and ParkCC shall be revoked, and all of the lawsuits of this case corresponding to the revoked portion shall be dismissed.

2. Of the judgment of the court of first instance, the part against the defendant Republic of Korea of the plaintiffs D Metal Co., Ltd. shall be modified as follows:

A. Defendant Republic of Korea expressed his/her consent to Plaintiff D Metal Co., Ltd within the scope of shares in relation to the restoration registration of share transfer registration (No. 50415, No. 2289/5341, Dec. 31, 2003), which was cancelled on April 24, 2008, with respect to the registration of the restoration of share transfer registration (No. 50415, No. 2289/5341, Dec. 31, 2003).

B. The remainder of the claim against the Defendant of the Plaintiff DM Co., Ltd. against the Republic of Korea is dismissed.

3. Defendant Republic of Korea’s appeal against Plaintiff AA General Construction Corporation is dismissed.

4. The plaintiffs, defendant KimB, and ParkCC bear the total costs of the lawsuit between the plaintiffs, and 30% of the total costs of the lawsuit between the plaintiff corporation DM and the defendant Republic of Korea is borne respectively by the plaintiff corporation, DM, and the remainder are borne by the defendant, and the costs of the appeal between the plaintiff AA comprehensive construction corporation and the defendant Republic of Korea are borne by the defendant.

1. Purport of claim

A. The Changwon District Court (Seoul District Court Decision 264.63/5341), which was cancelled on April 24, 2008 on the land listed in the attached Table 1, and the Changwon District Court (Seoul District Court Decision 2004.63/5341, which was cancelled on April 24, 2003, as of Apr. 29, 2008; Defendant KimB, ParkB, Korea, the Joint Defendant FF Corporation in the first instance trial, and leG, and hH, shall accept each declaration of consent for the registration for the recovery of share transfer registration as to the land listed in the attached Table 2. The Changwon District Court (Seoul District Court Decision 2008.4.24. 49620, Jun. 31, 2004) cancelled on Apr. 24, 2008.

B. Defendant KimB, ParkB, the Republic of Korea, and the Co-Defendant KimE in the first instance trial against the Plaintiff Co., Ltd. with respect to the land listed in Schedule 1. List 1, Changwon District Court macroscam registry office, which was the end of April 24, 2008, and the same registry office as of December 31, 2003, the receipt of No. 50415, No. 2289/5341, which was the end of December 31, 2003, expressed its intention of acceptance.

2. Purport of appeal

The part of the judgment of the first instance against the Defendants is revoked. The plaintiffs' claims against the Defendants corresponding to the revoked part are dismissed.

1. Basic facts

The reasoning of this Court's decision on this part is as follows: (a) Plaintiff DM against Defendant KimB on April 11, 2003, set forth in subparagraphs 1 and 2 below, and (b) Plaintiff DM on April 11, 2003: (b) "A lawsuit claiming ownership transfer is filed against Defendant KimB on April 11, 2003, U.S. District Court 2003Kadan10857, the transfer of the instant agreement, and (c) Plaintiff DM on April 11, 2003."

2. Ex officio determination on the plaintiffs' parts of defendant KimB and ParkCC

A. Under the premise that the effect of the act of disposal in conflict with the provisional disposition in this case can be denied, the plaintiffs filed a claim against Defendant KimB, and ParkCC to express their intent to accept each of the registration of restoration of ownership transfer in this case. In this case, we examine whether Defendant KimB, and ParkCC constitutes the "third party having interests in the registration" under Article 75 of the former Registration of Real Estate Act (hereinafter referred to as the "Act").

B. Article 75 of the former Registration of Real Estate Act (amended by Act No. 10580, Apr. 12, 201) means a person likely to suffer losses if a third party’s registration with an interest in the registration as provided in Article 59 (former Registration of Real Estate Act). Whether there is concern over suffering from losses" as stated in the existing registry means that the time of acquisition of rights by a third party is to be determined (as at the time of cancellation of registration), rather than that at the time of request for restoration registration (see, e.g., Supreme Court Decision 895673, Jun. 26, 1990). In addition, if the original registration was cancelled for restoration of registration becomes a joint application, it is necessary for the joint owner of a building, but it is not possible for the public official to obtain permission to cancel the registration ex officio, and if it is impossible for the latter to obtain permission to cancel the registration ex officio, it is not necessary for the latter to obtain permission to cancel the registration ex officio.

C. First, as to Defendant KimB, a third party who has interests in the registration is likely to cause damage as a person who is likely to cause such damage if the third party becomes a registration for the recovery of cancellation, it refers to a person who is formally recognized by the existing registry, and as seen earlier, Defendant KimB was a person who completed the registration for the transfer of ownership with respect to the land before the division of this case prior to the registration for the transfer of each ownership, and as such, Defendant KimB was a person who completed the registration for the transfer of ownership with respect to the land before the division of this case before the registration for the cancellation of each ownership transfer of this case, and as such, there is no risk of causing any damage in the form entered in

D. Next, in full view of the health stand in relation to Defendant GambCC and the overall purport of the argument in the above evidence, Defendant LbCC completed 1653/5341 of the land before the division, on May 15, 2002, the provisional registration of the right to claim partial transfer of ownership was completed on May 15, 2002, and the right to claim partial transfer of ownership was completed on August 20, 2002 on May 10, 2007, and accordingly, each of the above registrations of Defendant LbCC was completed on May 10, 207, and the ownership transfer registration of this case was revoked ex officio. Accordingly, each of the above registrations of Defendant LbCC is inconsistent with each of the above registrations. In this case, each of the above registrations is subject to the restoration registration prior to the restoration registration, and a claim against the other party without the consent of the other party who is the person responsible for the registration, is unlawful.

E. Even if the Plaintiffs’ respective acceptance requests against Defendant KimB, ParkB, and ParkCC were made by Defendant KimB, and as seen earlier, each ownership transfer registration of this case in this case was made ex officio upon completing the principal registration on May 10, 2007 on the provisional registration of May 10, 2007, and as such, the registration of this case was made ex officio ex officio by applying Article 175 of the former Act mutatis mutandis. Thus, even if the Plaintiffs’ request was made, the request for the execution of the restoration registration procedure is deemed to be unlawful as a claim against a person who is not a responsible for registration.

3. Judgment on the part of the plaintiffs' defendant Republic of Korea

A. The parties' assertion

The plaintiffs asserted that the agreement of this case regarding the land before the division of this case, which was owned by the defendant KimB, completed the registration of the provisional disposition of this case, and thereafter, that the plaintiff DM, which became final and conclusive by the lawsuit against the defendant KimB against the defendant KimB, and the decision of recommending settlement, and that the plaintiff AAM, which became final and conclusive by the court in favor of the defendant KimB, can deny the validity of the act of disposal in conflict with the above provisional disposition by completing each of the registration of this case's transfer of ownership, and that the agreement of this case, which was the cause of the registration of the provisional disposition of this case, was null and void in accordance with the agreement of this case, and that the above decision of recommending settlement or the above favorable judgment is governed by the agreement of this case, and therefore, the plaintiffs cannot deny the validity of the act of disposal in conflict with the above provisional disposition.

B. Legal principles

(1) After the registration of provisional disposition is completed with respect to real estate, the effect of the act of disposal in conflict with the provisional disposition may be denied within the scope of the right to preserve (see, e.g., Supreme Court en banc Order 92Ma903, Feb. 19, 1993). In such a case, whether the act of disposal is in conflict with the provisional disposition is determined by the prior registration of the act of disposal and the provisional disposition (see, e.g., Supreme Court Decision 2000Da65802, 65819, Feb. 28, 2003).

(2) As long as it is not necessary to strictly match the right to be preserved and the right which is the subject matter of a lawsuit on the merits, the effect of the preservation by the preservative measure is effective, and it does not result in changes in the purport of the claim and the cause of the claim, which are merely differences in the dispute over the uniform living or uniform economic interests (see, e.g., Supreme Court Decision 2006Da35223, Nov. 24, 2006).

C. Determination

(1) The above provisional disposition No. 1, and No. 7, had been issued 0 of the above provisional disposition No. 1 with respect to the cancellation of the above provisional disposition No. 1, and No. 8 of the above provisional disposition No. 1, and the plaintiff No. 1 and the plaintiff No. 2 were issued 0 of the above provisional disposition No. 1 with respect to each of the above provisional disposition No. 1, and the plaintiff No. 200 of the plaintiff No. 36 of the above provisional disposition No. 1, to the effect that the plaintiff No. 2 had no ownership transfer registration No. 8 of the above provisional disposition No. 1, and that the plaintiff No. 1 had no ownership transfer registration No. 6 of the above provisional disposition No. 1, and that the plaintiff No. 2 had no ownership transfer registration No. 3 of the above case with respect to each of the above provisional disposition No. 1, and that the plaintiff No. 2 had no ownership transfer registration No. 3 of the above case, but no more than 60 of the plaintiff No. 1's.

(2) In addition, as seen earlier, the registration of seizure and provisional seizure of Defendant Republic of Korea was completed after the registration of the provisional disposition company in this case, and each of the above registrations of Defendant Republic of Korea against Defendant KimB is a national tax delinquency registration and provisional seizure registration related to national tax delinquency against Defendant KimB, and in view of the registration of recovery as the base point of time of the registration of recovery, Defendant Republic of Korea is a third party who has an interest in the registration due to concerns over the business damage by entry in the registry

(3) On the other hand, the effect of the provisional disposition prohibition by the provisional disposition is only effective to the extent of infringing the right of the provisional disposition creditor. Accordingly, the effect of the provisional disposition violation can be denied to the extent of the provisional disposition violation. The defendant KimB in the principal lawsuit against the defendant KimB, "the defendant KimB", upon the decision to recommend the settlement that "the plaintiff KimB shall implement the procedure for ownership transfer registration based on the transfer agreement on July 5, 1999" with respect to the 600/140 of the land before the division, but the above decision became final and conclusive around that time, and on December 30, 203, "60/140 of the above decision on the settlement recommendation was revised to 1983.48/5341 shares", while the plaintiff KimB in the main lawsuit against the defendant Kim DB, the defendant Kim Jong-B obtained the above decision against the plaintiff Kim DB, and it is reasonable that the transfer registration agreement against the plaintiff Lee D2, 36416/631 of the previous decision of this case's 264.364.1.

D. Sub-committee

After all, Defendant Republic of Korea, and Plaintiff AA case are obliged to express its consent for the registration of the cancellation of the transfer registration of shares in the order of land listed in the separate sheet 1 and 2, and Plaintiff Du-metallics are obligated to express its consent only within the scope of shares in the order of the transfer registration of shares in the land listed in the separate sheet 1 as to the restoration registration of the transfer registration of shares in the land listed in the separate sheet 1.

4. Conclusion

Therefore, in the judgment of the court of first instance, the plaintiffs' claims against the defendant KimB and ParkCC are inappropriate. Since the above part of the judgment of the court of first instance is unfair, the above part of the judgment of the court of first instance is revoked, and all of the lawsuits of this case corresponding to the cancellation are dismissed, and the remaining claims against the defendant in the Republic of Korea of the plaintiff D Metal are accepted within the scope of the above recognition. The above part of the judgment of the court of first instance is unfair, and the above part of the judgment of the court of first instance is partially accepted for the above defendant's appeal against the above plaintiff, and the judgment of the court of first instance is modified as above, and the claims against the defendant in the Republic of Korea against the defendant in the above judgment of the court of first instance is justified, and since the above part of the judgment of the court of first instance is just as this conclusion, the appeal against the above plaintiff in the above defendant is dismissed,