Jeonju Support-2012-Ban-3841 ( October 15, 2013)

It is impossible to oppose the defendant that the reservation to trade constitutes a false conspiracy and thus void.

In the case of seizure or provisional seizure of claims arising from legal relations formed externally by false representation, and those who seize or provisional seizure have new legal interests based on false representation, it is reasonable to view that the claims constitute a third party under Article 108 (2) of the Civil Act.

Article 108(2) of the Civil Act

2013 or 30398 Requests for approval of cancellation of attachment

Park*

Korea

2013.02.15

2014.03.13

2014.03.27

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant will make a declaration of his/her intention to accept the registration of cancellation of the provisional registration of each ownership transfer claim (hereinafter referred to as "each provisional registration of this case") which was completed on February 4, 2010 by the Changwon District Court of Changwon District with respect to each real estate listed in the separate list of real estate (hereinafter referred to as "each land of this case").

1. Basic facts

The following facts shall not be disputed between the parties, or may be recognized by taking into account the respective descriptions of evidence Nos. 1-1 through 3, 4-1, 2, and 6 and the whole purport of pleadings:

A. On December 8, 1997, the plaintiff made a false promise to sell and purchase each of the land of this case owned by himself (hereinafter referred to as "the promise to sell and purchase of this case") in collusion with the plaintiff Y*, the plaintiff's land for the purpose of evading compulsory execution, etc. of the creditors **, the plaintiff's land of this case * and Kim* on the same day* and the provisional registration of this case was completed on the ground of the promise to sell and purchase this case ** on each of the land of this case.

B. On October 23, 2007, the ○○○ Tax Office under the Defendant’s control issued each of the instant claims for the transfer of ownership on each of the instant lands * on October 23, 2007, and the Changwon District Court completed the additional registration of each of the instant provisional registrations as the receipt No. 1480 on February 4, 2010 (hereinafter “each of the instant seizures and the registration of each of the instant seizure”).

C. The Plaintiff asserted to the effect that, while filing a lawsuit against the Changwon* and Kim* seeking the cancellation of each provisional registration of this case against the Changwon District Court Jin** and Jin Kim**, the Plaintiff concluded a false pre-sale promise as if he did not make a pre-sale promise and concluded a false pre-sale promise and completed each provisional registration of this case on the grounds of the pre-sale promise, and thus, the pre-sale promise of this case is null and void.

D. On January 26, 2012, the above court rendered a judgment in favor of the Plaintiff (or service by public notice, Kim* in respect of the Plaintiff**), and the above judgment became final and conclusive on March 7, 2012 as to yellow***, Kim*, respectively.

2. Determination as to the defendant's defense prior to the merits

The defendant, as the plaintiff, filed an application for cancellation of attachment with the tax authority under the National Tax Collection Act on the grounds that the requirements for cancellation of attachment are met, and the tax authority's rejection of such application can bring an objection against it through administrative litigation through a prior trial procedure against the rejection disposition. Thus, as long as it cannot be deemed that there is a defect of invalidation of the seizure disposition as a matter of course, the defendant cannot immediately seek an expression of consent to cancellation of attachment as to the seizure under the procedure for arrears as prescribed by the National Tax Service Act, and therefore, the lawsuit of this case is unlawful.

The plaintiff's cause of the claim of this case is so invalid as long as the contract of this case is invalid.

Since each attachment of this case is null and void, the defendant is obligated under the substantive law of the cancellation of each provisional registration of this case as a third party interested in the registry, and the defendant must express his/her consent to the cancellation of each provisional registration of this case to the plaintiff. Accordingly, the plaintiff's assertion is an administrative disposition, the seizure of this case is null and void as a matter of course, and when an administrative disposition, the invalidation of which is void as a matter of course, becomes a preliminary decision of a civil case, the court may deliberate and decide it without following the administrative litigation procedure (see, e.g., Supreme Court Decisions 64Da871, Sept. 30, 1964; 71Da2279, Oct. 10, 1972; 70Da1439, Jul. 10, 1973). It cannot be viewed that the lawsuit of this case itself is unlawful, apart from whether the plaintiff's claim against the defendant is legitimate.

Therefore, the defendant's defense prior to the merits is without merit.

3. Judgment on the merits

A. The plaintiff's assertion

1) Each of the provisional registrations of this case is registration of invalidity of cause, since the Plaintiff conspired with yellow*, etc. without any cause and concluded a false pre-sale agreement and completed a false pre-sale agreement.

2) Although the reservation of this case was completed on December 8, 1997, it was yellow** because it did not exercise the right to complete the purchase and sale reservation until the expiration of ten years thereafter, the right to complete the purchase and sale reservation expired over the limitation period. Yellow** the right to complete the sale reservation, which is premised on the right to complete the sale reservation, has no need to preserve the right to claim the transfer of ownership. Accordingly, each of the provisional registrations of this case is registration invalid.

3) Therefore, the attachment or seizure registration of each of the instant provisional registrations is also null and void as to the right to claim ownership transfer**’s right to claim ownership transfer or each of the instant provisional registrations. Since the Defendant is a third party with interest in the registry with respect to the cancellation of each of the instant provisional registrations, the Defendant is obligated to indicate the intention to accept each of the instant provisional registrations against

B. Invalidity and origin of false conspiracy, and the defendant's right relationship

The promise to sell and purchase of this case is concluded with the plaintiff Y* as it constitutes a false declaration of intention, and thus null and void as it constitutes a false declaration of intention under Article 108 (2) of the Civil Act. However, in case where a claim arising from a legal relation formed externally by false representation has been provisionally seized based on a false representation, the provisional attachment authority is deemed to be a third party under Article 108 (2) of the Civil Act, since it has a new legal interest based on the false representation (see Supreme Court Decision 2003Da70041, May 28, 2004). The defendant is a claim arising from the purchase and sale of this case * as a seizure authority that seized a claim to transfer ownership on the real estate of this case * as a third party under Article 108 (2) of the Civil Act that has a new legal interest based on the promise to sell and purchase this case, barring any special circumstance, the third party under Article 108 (2) of the Civil Act is presumed in good faith (see Supreme Court Decision 2010Da312106, Mar. 2121, 20, 2006).

C. Determination as to the exclusion period and assertion of the Plaintiff’s right to complete the purchase and sale reservation

The meaning of "not to resist to a third party acting in good faith through the invalidation of false representation" is that a false declaration of intention made with the other party is null and void, and in principle, any person may assert the invalidity of such false declaration. However, with respect to a third party acting in good faith, any person as well as the party who has conspired with the other party cannot assert the invalidation of such false representation. Accordingly, the declaration of intention made invalid or the legal act made invalid between the parties who conspired with the other party does not become effective. Thus, the reservation to trade of this case is still null and void between the plaintiff and yellow*.

However, if a contract is null and void, it cannot be effective as the content of the contract, and the parties cannot perform any obligation under the terms and conditions of the contract, so long as the contract of this case is null and void, yellow** cannot exercise the right to complete the purchase and sale, and the limitation period based on the premise that the exercise of the right to complete the purchase and sale should not run.

D. Sub-committee

Therefore, even if the promise of this case is null and void due to a false conspiracy, the plaintiff cannot oppose the defendant, a bona fide third party, as invalid, and as long as it cannot be recognized even with the exclusion period of the right to complete the purchase and sale, the defendant cannot be deemed to have the obligation under the substantive law to cancel each registration of this case.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

List of Real Estate

1. ○○-ri, 000 square meters in Gyeongnam-gun, ○○-ri, 181 square meters;

2. 겅남 ○○군 ○면 ○○리 241 대 228㎡

3. The end of ○○-ri, ○○-ri, ○○-ri, 146-2 Forest land 9,818 square meters; and