Seoul High Court 2009Na107 ( October 15, 2010)

The registration of additional registration and transfer of ownership prior to the provisional registration of the claim for transfer of ownership cannot be invalidated because there is no ground for the defendants to manipulate false documents.

Since there is no basis to recognize that the Defendants forged documents and completed the additional registration and the registration of transfer of ownership prior to the provisional registration of ownership transfer in their names, the registration of ownership transfer in the name of the Defendants cannot be invalidated.

Article 47 of the National Tax Collection Act

2011Da3152. Cancellation, etc. of ownership transfer registration

-Appellee

Limited Liability Company II Consulting

1. AA unemployment company;

-Appellant

2. BB 3. LaborCC

4. Doddd 5. RoE 6. FF Bank

7. GGG mutual savings banks; 8. Korea HaH;

Seoul High Court Decision 2009Na107 Decided October 15, 2010

July 10, 2014

The part of the lower judgment against Defendant BB and TradeCC is reversed, and that part of the case is remanded to the Seoul High Court.

All of the plaintiff's appeals are dismissed.

Of the costs of appeal, the costs incurred between the Plaintiff and Defendant A Unemployment, DD, CE, FF Bank, GG Mutual Savings Bank, Korea, and HH are borne by the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Plaintiff’s appeal

A. As to the appeal against Defendant AA Unemployment Corporation

The court of final appeal may deliberate within the limit of the appeal pursuant to the grounds of final appeal. As such, the grounds of final appeal clearly state specific grounds for final appeal as to which part of the lower judgment is in violation of the statutes, and, in the absence of such specific and explicit grounds, it is inevitable to treat the grounds of final appeal as not filing (see, e.g., Supreme Court Decision 2008Da14633, Apr. 14, 201).

The Plaintiff’s petition of appeal or the grounds of appeal are as follows: “The Plaintiff did not state any part of the lower judgment regarding the claim against Defendant AA Unemployment Co., Ltd. (hereinafter “Defendant AUnemployment”) and did not state any matter that may be the grounds of appeal, as well as any other matter that is otherwise alleged in the grounds of appeal.” As to the claim against Defendant Aunemployment, the appellate brief is deemed not to have been submitted.” (B) As to the grounds of appeal against Defendant BB, TradeCC, strict DD and E

1) As to the claim for cancellation of the additional registration before the provisional registration of the right to claim ownership transfer

A) Forgery of registration-related documents (Ground of appeal Nos. 1, 4, and 5)

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim for the cancellation of the additional registration before the provisional registration of transfer of ownership and the registration of transfer of ownership, on the ground that it is difficult to recognize that the plaintiff's right to claim transfer of ownership has completed the additional registration before the provisional registration of transfer of ownership and the registration of transfer of ownership in the name of the defendant BB (hereinafter referred to as "Defendant BB"), TradeCC, strict DD, and E (hereinafter referred to as "the above defendants combined with the above defendants) with respect to each real estate of this case by forging relevant documents, even though the defendant TradeCC did not have the right to dispose of each real estate listed in No. 1 or No. 359 listed in the separate list No. 1 through No. 359 as stated in the judgment of the court below (hereinafter referred to as "each real estate of this case"). In light of the records, the judgment of the court below is just, and contrary to what is alleged in the grounds of appeal,

B) As to the allegation of invalidity due to absence of a special resolution of the general meeting of members (ground of appeal Nos. 2 and 4

The lower court determined that the Plaintiff’s assertion of invalidity of the transfer of each of the instant real estate, the sole property of the Plaintiff, was not permissible against the principle of good faith, inasmuch as there is no evidence to acknowledge that there was no special resolution for the general meeting of members in transferring it to Defendant TradeCC and to third parties, and even if there was no special resolution for the above general meeting of members, the Plaintiff appears to be a company of this JJ in substance and thus, insofar as each of the instant real estate was transferred to Defendant TradeCC and third parties pursuant to the intention of the JJ

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to the validity of

C) Claim on the validity of the agreement on the diversion of registration (Ground of appeal No. 2)

Where a provisional registration has been completed to preserve a claim for ownership transfer registration on the basis of an invalid sale agreement, such provisional registration shall be cancelled as a registration for invalidity of the cause. However, if the owner of the real estate has concluded a new sale agreement with a third party and agreed to use it for preserving a claim for ownership transfer registration based thereon, and actually completed the additional registration prior to such provisional registration, a third party who has completed the additional registration prior to such provisional registration cannot assert the validity of such provisional registration on the ground of the agreement for utilization of the above provisional registration with respect to a person who has an interest in the register prior to such provisional registration, but the owner of the real estate may at any time claim for cancellation of the provisional registration and claim for cancellation of ownership transfer registration based on the agreement for utilization of the above provisional registration by asserting that the utilization of the provisional registration has been agreed (see Supreme Court Decision 2009Da4787, May 28, 2009).

"The reasoning of the judgment below and the record reveal that the provisional registration of Defendant AA Unemployment, which was completed on January 24, 2002 with respect to each of the instant real estate, was a provisional registration of invalidation that the Plaintiff, in collusion with the Defendant AA unemployment and concluded on January 24, 2002, would have been the same day of reservation. Defendant BB and TradeCC purchased the remainder other than the nine floors of each of the instant real estate from the Plaintiff and agreed to complete the provisional registration based on the additional registration prior to the transfer registration with the Plaintiff while knowing that the above provisional registration was null and void. Accordingly, Defendant B and TradeCC agreed to complete the provisional registration prior to the transfer registration based on the above provisional registration with the above provisional registration after completion of the provisional registration prior to the above provisional registration on October 30, 200 and October 30, 2002, and each of the above provisional registration had been made in relation to ownership transfer registration under the above provisional registration prior to the above provisional registration, and thus, it can be seen that the above provisional registration was invalid based on the legal principles as seen earlier.

Therefore, although the reasoning of the court below on this part is somewhat insufficient, it is just in its conclusion to reject the plaintiff's request for cancellation of the above ownership transfer registration, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on the utilization of registration or burden

D) Bad faith assertion as to false declaration of intent conspired (Ground of appeal No. 5)

According to the reasoning of the judgment below, the court below determined that the plaintiff could not oppose the defendant GG bank with the invalidation of the above purchase and sale agreement on the ground that there is no evidence to prove that the defendant corporation GG bank (hereinafter "the defendant GG bank") knew that the purchase and sale agreement of this case between the plaintiff and the defendant AG unemployment was a false declaration of intent." In light of the records, the court below's determination is just, and there is no violation of law of logic and experience beyond the bounds of the principle of free evaluation of evidence.

2) As to the claim for ownership transfer registration (ground of appeal Nos. 3 and 4)

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for ownership transfer registration on each of the instant real estate on the ground that it is difficult to recognize that the evidence submitted by the Plaintiff, in light of the circumstances stated in its reasoning, was a title trust agreement with the Plaintiff and Defendant Nowon-CC and three other parties on each of the instant real estate, or that it is difficult to recognize that there was an implied agreement to restore ownership to the Plaintiff upon the normalization of management, because the ownership of the remaining portion of the instant real estate excluding the nine floors among the instant real estate was transferred between the Plaintiff, Defendant BB, and LaborCC was smoothly

In light of the records, the above judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence against logical and empirical rules.

C. As to the grounds of appeal against Defendant FF Bank, GG Bank, and HH in the Republic of Korea, this part of the grounds of appeal is premised on the invalidity of each of the instant registration of ownership transfer in the name of Defendant BB and TradeCC, and as seen earlier, each of the above registrations of ownership transfer cannot be deemed null and void. As such, this part of the grounds of appeal on this point is without merit without further review.

2. As to the appeal by Defendant BB and LaborCC

"Along with the completion of the registration of transfer of ownership in their names with respect to each part of the corresponding part of the real estate of this case other than nine floors, Defendant BB and Trade Union agreed to use the provisional registration of this case which is null and void with the Plaintiff, and the completion of the additional registration prior to the provisional registration and the principal registration of transfer of ownership is as seen above. Thus, in light of the legal principles as seen above 1.B.(1)(c) in light of the above legal principles, the above Defendants may oppose the Plaintiff’s claim against the Plaintiff for cancellation of the above provisional registration as to each of the real estate listed in [Attachment 1] through 171 of [Attachment 1] and [Attachment 1] to the judgment of the court below (hereinafter in this case hereinafter in this case hereinafter in this case)." However, the court below accepted the above provisional registration against the above Defendants on the ground that the court below erred by misapprehending the legal principles as to the validity of the agreement on the utilization of the registration of ownership, and failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant BB and TradeCC is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.