Whether enforcement fines may be imposed in cases where a person whose long-term registration under the Act on the Registration of Real Estate under Actual Titleholder's Name has been fulfilled an obligation for registration after the lapse of the period prescribed in Article 6 (2) of the same Act (negative

In full view of the contents, structure, and purport of Articles 10(1) and (4) and 6(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), enforcement fines imposed on a person entitled to registration, etc. who did not file an application for registration of ownership transfer (hereinafter “person subject to registration”) within three years from the date on which the payment of consideration was completed, unlike penalty surcharges imposed on the past fact of nonperformance of the obligation to file an application for registration of ownership transfer registration, constitute an indirect administrative compulsory means indirectly compelling the performance of obligation by giving psychological pressure that enforcement fines should be imposed if the person whose registration was not registered for a long time has failed to perform the obligation to file an application for registration before the imposition of enforcement fines. Therefore, the purpose of securing performance by imposing enforcement fines is already realized, and thus, enforcement fines cannot be imposed even if the person fulfilled the obligation to file an application for registration after the lapse of the period prescribed in Article 6(2) of the Real Estate Real Name Act.

Articles 6(2), 10(1) and (4) of the Act on the Registration of Real Estate under Actual Titleholder’s Name;

○○ Private Teaching Institute (Law Firm LLC, Attorneys Ansan-hwan et al., Counsel for defendant-appellant)

The head of Gangseo-gu Seoul Metropolitan Government (Law Firm Han, Attorneys Kim Jong-pon et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 2014Nu62304 decided January 7, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal No. 1 are examined.

The Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) provides that a penalty surcharge shall be imposed on a person entitled to registration, etc. who fails to file an application for the registration of ownership transfer (hereinafter “person subject to registration of ownership transfer”) within three years from the date on which the payment in return is completed (Article 10(1)). If a person subject to registration of ownership transfer fails to file an application for the registration of ownership transfer even after the imposition of a penalty surcharge, the amount equivalent to 10/100 of the appraised value of real estate shall be imposed at the lapse of one year from the date on which the penalty surcharge is imposed; and the amount equivalent to 20/100 of the appraised value of real estate shall be imposed as a charge for compelling performance at the expiration of one year

In full view of the contents, structure, and purport of the Real Estate Real Name Act, unlike penalty surcharges imposed on a person who has not been registered for a long time, it constitutes an indirect administrative compulsory enforcement means indirectly compelling the performance of such obligation by granting psychological pressure to impose a compulsory performance charge on a person who has not been registered for a long time, failing to perform an obligation to file an application for registration. Therefore, if a person who has not been registered for a long time fulfilled an obligation to file an application prior to the imposition of a compulsory performance charge, the purpose of securing the performance as a compulsory performance charge is already realized, and thus, the compulsory performance charge may not be imposed even after the period stipulated in Article 6(2) of the Real Estate Real Name Act passes.

Nevertheless, the lower court determined otherwise, that the instant disposition was lawful by deeming that the enforcement fine can be imposed even if a person who did not file an application for the registration of ownership transfer within the period stipulated in Article 6(2) of the Real Estate Real Name Act, insofar as such person filed an application thereafter. In so determining, the lower court erred by misapprehending the legal doctrine on the imposition of enforcement fines against a person whose long

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Shin (Presiding Justice)