Where a provisional registration of a pre-sale is a provisional registration of security, the principal registration based on a provisional registration shall be null and void unless liquidation procedures prescribed by the Act on Provisional Registration Security, Etc.

Where a provisional registration of a pre-sale is a provisional registration of security, the principal registration based on a provisional registration shall be null and void unless liquidation procedures prescribed by the Act on Provisional Registration Security, Etc.

2016-Gohap-535833 Undue profits

AA

Republic of Korea and 4

2017.05.17

2017.06.14

1. From among the distribution schedule prepared by the above court on November 18, 2015 with respect to the auction case of real estate, the amount of dividends of the plaintiff to 14,00,000 won, the amount of dividends to the defendant Republic of Korea (the ○○ Tax Office: the △△ Tax Office) shall be KRW 921,348 won, the amount of dividends to the defendant Republic of Korea (the △△ Tax Office: the △△ Tax Office) shall be KRW 921,348 won, the amount of dividends to the defendant Republic of Korea shall be KRW 256,90 won, the amount of dividends to the defendant National Health Corporation shall be KRW 359,93 won, the amount of dividends to the defendant National Health Corporation shall be KRW 13,486 won, the amount of dividends to the defendant National Health Corporation shall be KRW 14,00,000, KRW 125,348 won, and the amount of dividends to the defendant Southern-gu in Incheon Metropolitan City shall be corrected to KRW 81757,587

2. The costs of lawsuit are assessed against the Defendants.

Cheong-gu Office

The primary purport of claims is as stated in paragraph (1) of this Article.

Preliminary Claim: In regard to the auction case of real estate, the amount of the plaintiff's dividend amount of KRW 14,00,000 among the dividend table prepared by the above court on November 18, 2015, and the amount of KRW 818,17,950 to the defendant E-backed limited company (hereinafter referred to as "the defendant company") shall be corrected to KRW 804,177,950,00 for KRW 804,17,950, among the dividend table prepared by the above court on November 18, 2015.

1. Basic facts

A. BB said, on September 7, 201, “the instant real estate” and “the aggregate of the said forests and buildings shall be ○○-ri 2-31 square meters and the instant four-story multi-family houses (hereinafter referred to as “the instant real estate by summing up the said land and buildings”) of Song-do, Song-do, ○○-ri 2-32, 634 square meters and the instant four-story multi-family houses (hereinafter referred to as “the aggregate of the said forests and buildings”). However, the said 2-31 real estate completed the registration of ownership transfer or the registration of ownership transfer on July 4, 2013.

BB completed the registration of creation of a mortgage on September 7, 201 and on the land of the instant real estate and of the Jinjin-gun, the BB equity (However, the BB equity was transferred on July 4, 2013 to the institution-level; the national bank, the debtor bank, the maximum debt amount; the maximum debt amount of 416 million won; the registration of creation of a mortgage on the land of the instant real estate and the Songjin-gun, the 00 Ri 2-34 and the 2-35 land of the same Ri 2-35 as the joint collateral, with the joint collateral, at the National Bank, the debtor B, the maximum debt amount of 416 million won, Co.,, Ltd., the debtor B, the maximum debt amount of 40 million won.

C. On September 22, 2011, BB completed the provisional registration of the right to claim ownership transfer (hereinafter “the provisional registration of this case”) on September 20, 201 with respect to the instant real estate, which was based on the purchase and sale promise made on September 20, 201, and CCC completed the additional registration of the instant provisional registration to HH on December 26, 201 due to the transfer of ownership transfer claim made on December 26, 201.

D. On May 14, 2012, the Plaintiff entered into a lease agreement with respect to the lease deposit of 45 square meters (102 dong 201 and 201) from May 15, 2012 to May 14, 2013, and entered into a lease agreement with the period from May 15, 2012 to May 14, 2013, and registered the housing lease on August 6, 2013, and upon BB’s failure to refund the lease deposit, the Plaintiff was awarded a favorable judgment against the Plaintiff on September 24, 2013 by raising the lawsuit against BB seeking the return of the lease deposit (the Daejeon District Court of Daejeon District Court of Daejeon, Seosan Branch Branch 2013 Gao○○○○○○○).

E. On January 9, 2014, at the request of the National Bank, Co., Ltd., the mortgagee, the real estate auction procedure was initiated on January 9, 2014 with respect to the portion of the land at issue, including the instant real estate, and 2-34 of the same Ri 2-35.

F. Meanwhile, HH completed the registration of ownership transfer based on the provisional registration of this case on April 14, 2014 for the instant real estate on the grounds of sale as of April 11, 2014 during the instant auction procedure.

G. On November 18, 2015, when the date of distribution of the auction procedure of this case was 880,117,80,000 won to GGGGGs on the date of actual distribution, KRW 15,00,00 won to the lessee of the fixed date, KRW 1,021,105 won to the second lessee of the fixed date (the pertinent tax), KRW 2,352,870 to the delivery authority of the Republic of Korea (the pertinent tax office: 00,000), KRW 18,471,840 to the delivery authority of the Republic of Korea (the issuing authority: 00,000), KRW 818,117,80 won to the applicant company (the transferee of the national bank of the national bank of the stock company), and KRW 16,396,396,3196,394,396,396,46, and 47, to the distribution authority of the dividends to the defendant Republic of this case.

G. On the date of the above distribution, the Plaintiff raised an objection against the entire amount of dividends of the Defendant Company, 14 million won, and the remaining Defendants’ dividends, and filed the instant lawsuit on November 25, 2015, within one week thereafter.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 6, 12, 13, 14, Gap evidence No. 5-1 and 2, and the purport of the whole pleadings

2. The allegations and judgment of the parties

A. The parties' assertion

(1) The plaintiff's assertion

The provisional registration of this case is a provisional registration for security, but it does not go through the liquidation procedure stipulated in the Provisional Registration Security Act (hereinafter referred to as the "Provisional Registration Security Act"). Thus, the principal registration based on the provisional registration of this case is null and void. Therefore, the Plaintiff, as a small lessee under the Housing Lease Protection, has to receive 14 million won out of the deposit for lease deposit 40 million won in preference to the Defendants or the Defendant Company, so the instant distribution schedule of this case should be revised in the same manner as the primary claim or preliminary claim.

(2) The defendants' assertion

① Since HH, on April 14, 2014, to whom the right to claim ownership transfer of the instant real estate registered provisionally, completed the principal registration based on the instant provisional registration with respect to the instant real estate on April 14, 2014, the Plaintiff, who acquired the opposing power prescribed in the housing lease protection after the completion of the instant provisional registration, may not oppose the Defendants as his own lease.

② Even if the provisional registration of this case was a provisional registration of security, since it did not meet the requirements for applying the Provisional Registration Security Act, the Provisional Registration Security Act does not apply.

B. Determination

(1) Relevant precedents

(1) Since the Provisional Registration Security Act applies in cases where a promise is made to transfer other property rights with respect to the return of a borrowed object, the said Act does not apply to a provisional registration or transfer for security made to secure any obligation other than a monetary loan for consumption or a quasi-loan for consumption, but the said Act applies to a provisional registration or transfer for the purpose of securing any obligation to return a borrowed amount based on a monetary loan for consumption or quasi-loan for consumption, and a provisional registration or ownership transfer registration made for the purpose of securing at the same time any obligation arising from any other cause, but if the subsequent obligation is extinguished for repayment or any other reason and all or part of a obligation to return a borrowed amount based on a monetary loan for consumption or quasi-loan for consumption remains, the Provisional Registration Security Act applies to such provisional registration or transfer for security (see Supreme Court Decision 2003Da

(2) According to Articles 3 and 4 of the Provisional Registration Security Act, in a case of a provisional registration for security, where there is no liquidation amount or no liquidation amount to be paid to an obligor after notifying the obligor of the appraised value of the liquidation amount, a principal registration based on the provisional registration may be requested after the obligor passes a liquidation procedure to be completed for two months from the date on which the obligor is notified of the liquidation amount. In a case where the principal registration based on the provisional registration for security has been made in violation of each of the above provisions, the principal registration is null and void. However, if a person having a right to provisional registration is subject to such liquidation procedures, the principal registration can only be a valid registration corresponding to the substantive legal relationship. Furthermore, according to Articles 13, 14, and 15 of the Provisional Registration Security Act, if an application for a compulsory auction, etc. was made prior to the completion of such liquidation procedures, the provisional registration holder is not entitled to make a principal registration based on the provisional registration, and the provisional registration is extinguished by the sale of real estate, but has the right to preferential payment of his/her own claim (see Supreme Court Order 20

(3) Where a principal registration based on provisional registration for security has been made in violation of each provision of the Provisional Registration Security Act, the principal registration is null and void. Even if such principal registration was made by a special agreement between a person holding a provisional registration and an obligor, if such special agreement is null and void as unfavorable to an obligor, the principal registration is still null and void (see Supreme Court Decision 2015Da13171, Jun. 23, 2016).

(2) In full view of the aforementioned evidence and the witness CCC and the testimony of HH, the construction company, upon receiving a contract from BB for construction work, and completed the provisional registration of this case in order to secure the claim for construction cost. However, the BB proposed to transfer the provisional registration of this case to HH by borrowing funds from HH from the CCC. The CCC transferred the right to transfer ownership of the instant real estate registered with HH to HH, and completed the additional registration of the instant provisional registration; HH had a claim for loans, etc. (see, e.g., the protocol of examination of witness HH), etc. against BB, and HH may recognize the fact that HH completed the principal registration of this case based on the provisional registration of this case without undergoing the liquidation procedure.

In light of the above facts in light of the legal principles as seen earlier, the provisional registration of this case is a provisional registration to which the Provisional Registration Security Act applies, and HH not only completed the registration of ownership transfer on the basis of the provisional registration of this case without undergoing the liquidation procedure as prescribed by the Provisional Registration Security Act, but also there is no possibility that the registration of ownership transfer on the real estate in the name of HH, which was null and void, would be a valid registration consistent with the substantive relationship, so the registration of ownership transfer on the real estate in the name of HH based on the provisional registration of this case is null and void, and therefore the plaintiff may oppose the defendants as a small lessee under the Housing Lease Protection

Ultimately, the Plaintiff has the right to be paid 14 million won of the Plaintiff’s lease deposit in the auction proceeds of the instant real estate in preference to the Defendants, who are the secured party or the delivery right holder. Therefore, the instant distribution schedule should be revised as stated in paragraph (1) of the same Article.

3. Conclusion

Then, the plaintiff's primary claim is justified and it is decided as per Disposition by the assent of all participating Justices.

section 3.