(영문) 대전지방법원 2014.6.11.선고 2013구합101547 판결

1. The Defendant confirms that the disposition imposing a penalty surcharge of KRW 11,524,720, imposed on the Plaintiff on September 16, 201, is null and void.

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

The same shall apply to the order of the Gu office.

Reasons

1. Details of the disposition;

A. B, who was the Plaintiff’s wife, filed a divorce lawsuit against the Plaintiff, and was sentenced to a divorce on October 19, 1998, and the above judgment became final and conclusive on November 6, 1998. Since then, the Plaintiff filed a claim for the division of property against B, the Daejeon District Court 200 saw-Ma624, which decided on November 6, 1998 that “B, as division of property, performed the registration procedure for the transfer of ownership on the basis of one-fourth share of each of the real property listed in the separate sheet (hereinafter “instant real property”), which became final and conclusive on January 7, 2004.

B. On August 11, 201, the Plaintiff completed the registration of transfer of ownership of the instant real estate on the ground of division of property.

C. On September 16, 2011, the Defendant issued a disposition imposing a penalty surcharge of KRW 11,524,720 (hereinafter “instant disposition”) on the ground that the Plaintiff violated the provisions of Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) (non-performance of the registration of ownership transfer within three years from the date the judgment became final and conclusive).

【Ground of recognition】 The fact that there is no dispute, Gap's 1 through 4, Eul's 1 through 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff does not fall under “a person who entered into a contract for the transfer of ownership of real estate” subject to the regulation under Article 10(1) of the Real Estate Real Name Act, and even if it falls under the case, the Plaintiff is unable to file an application for registration, and thus the disposition of this case is null and void because the defect is serious.

(b) Related statutes;

A person subject to Article 10 of the Act on Special Measures for the Registration of Real Estate under Actual Titleholder's Name, who is subject to Articles 2 (1) and 11 of the Act on Special Measures for the Registration of Real Estate and Article 2 of the Addenda to the Act on Special Measures for the Registration of Real Estate under Actual Titleholder's Name, and Article 424 of the Act on Special Measures for the Registration of Real Estate within three years from any of the following dates (hereinafter referred to as "person unregistered for a long time") shall be punished by a penalty surcharge (where an administrative fine under Article 11 of the Act on Special Measures for the Registration of Real Estate has already been imposed, referring to the amount obtained by subtracting the amount equivalent to the administrative fine) within the limit of 30/100 of the average value of real estate: Provided, That the same shall not apply where any ground for newly applying for registration arises because the registration becomes effective

1. If parties to a contract bear a mutual pecuniary obligation, the day on which the performance of the consideration has been de facto completed;

2. If only one of the parties bears the obligation, the day on which the contract comes into force (hereinafter referred to as the " provision of this case").

Article 2 (Obligation to Apply for Registration, etc. of Ownership) of the Act on Special Measures for the Registration of Real Estate (Amended by Act No. 12153, Jan. 1, 2014)

(1) A person who has entered into a contract with the contents of transfer of real estate ownership shall file an application for registration of transfer of ownership within 60 days from the date specified in any of the following subparagraphs: Provided, That this shall not apply where such

1. If the parties to a contract bear a quid pro quo obligation, the day the performance of the consideration is completed;

(1) Where a person entitled to registration neglects an application for registration under Article 2 without any reasonable ground, he/she shall be punished by a fine for negligence not exceeding five times the amount (in cases falling under Article 13 (2), (3), (6) or (7) of the same Act, 300/100 of such amount) calculated by applying the tax rate subtracting 20/1,00 from the standard tax rates under Article 11 (1) of the Local Tax Act (where the tax rates are otherwise prescribed by municipal ordinance under Article 14 of the same Act, referring to such rate of tax) to the real estate as of the date on which he/she neglects to apply for registration under Article 10 of the same Act: Provided, That the same shall not apply to cases where a penalty surcharge is imposed under Article

(2) In determining the amount of a fine for negligence under paragraph (1), the period of neglect, reasons for neglect, value of the objective real estate, etc. shall be taken

Article 2 (Transition Measures Concerning Application for Registration of Ownership Transfer) of the Addenda (Enforcement of Act No. 4244 of Aug. 1, 1990) (Transition Measures Concerning Application for Registration of Ownership Transfer).

This Act shall apply to a person who has entered into a contract and fails to apply for the registration of transfer of ownership even if he is able to apply for it, deeming the enforcement date of this Act as the date as determined in any of subparagraphs of Article 2 (1): Provided, That this shall not apply where the registration of the person entitled to make a registration or the third

C. Determination

1) Whether the Plaintiff constitutes “long-term unregistered person” under the instant provision

A) The administrative laws and regulations, which serve as the basis for an indivative and reind administrative disposition, should be strictly construed. In particular, the dispositions that directly infringe on property rights, such as the imposition of penalty surcharges, should be clearly stipulated in the relevant laws and regulations (see, e.g., Supreme Court Decision 9Du1571, May 28, 199).

The Act on Special Measures for the Registration of Real Estate imposes an obligation to file an application for registration within a certain period (60 days) on a party who entered into a contract with the content of transfer of ownership to prevent real estate speculation mainly through unregistered pre-sale and tax evasion (Article 2, etc.) and violates this (Article 11). The instant provision regulates de facto title trust using unregistered state, and prevents attempts to avoid the application of the Act on the Registration of Real Estate under Actual Name for the Registration of Real Estate by preventing any speculation or evasion of laws, etc., which abuse the real estate registration system, and to prevent normalization of real estate transactions and stabilization of real estate prices, in order to prevent any anti-social acts such as speculation and evasion of laws, etc., which abuse the real estate registration system, and to promote the normalization of real estate transactions and stabilization of real estate prices by taking into account whether administrative fines under Article 11 of the Act on Special Measures for the Registration of Real Estate have been imposed within a certain period of time (see, e.g., Supreme Court Decision 2013HunBa26, Feb. 36, 2013).

In light of the principle of strict interpretation of administrative law and the legislative intent of the provision of this case, the term "person who has not registered for a long term" under the provision of this case refers to a person subject to Article 2 (1) and Article 11 of the Act on Special Measures for the Registration of Real Estate and Article 2 of the Addenda to the Act on Special Measures for the Registration of Real Estate (Act No. 4244), i.e., a person who has entered into a contract for the transfer of ownership on the grounds of sale, exchange, gift, etc., so a person who shall file an application for the registration of ownership transfer on the grounds of sale, exchange, auction,

In this case, the Plaintiff’s registration of transfer of ownership based on a court’s judgment on division of property is not a contract with B, and thus, the Plaintiff is not a “long-term unregistered person” under the provision of this case.

B) On this issue, the Defendant asserts that even in a property division trial, etc., the Plaintiff should be deemed as a “person who has not registered for a long time” under the instant provision, since there is room for using it as a means of speculation, tax evasion, and illegal act by failing to register for

However, if a property division judgment is made by a court unlike a contract between the private parties, such lawsuit

Since the relationship of sovereignty is clearly revealed through the court's decision, it is much less likely to be used as a means of speculation, etc., and even if not, insofar as the provision of this case clearly limits the cause of acquisition of ownership to "contract", it is not a legislative solution but a legislative expansion or analogical application. The defendant's above argument cannot be accepted.

2) In order to determine whether the disposition in this case is null and void, the mere fact that there is an illegality in the disposition is insufficient to say that the disposition in this case is null and void, and it is objectively clear that the defect is serious in violation of the important part of the law and regulations. In determining whether the defect is significant and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective as well as reasonable consideration on the specificity of the specific case itself (see, e.g., Supreme Court Decision 2012Du7332, Nov. 28, 2013). The disposition in this case was imposed on a person who does not fall under the “long-term person not registered” under the provision in this case, and the legislative purpose of the provision in this case is to regulate de facto title trust using the state of unregistered registration, and to strengthen the effectiveness of the Real Estate Real Name Act by blocking the attempt to avoid the application of the Real Estate Real Name Act for title trust without registration. In addition, it is not clear that the registration of ownership transfer does not fall under the Act of real estate subject to registration.

Therefore, the instant disposition is null and void as a matter of course.

3. Conclusion

Therefore, the plaintiff's assertion is reasonable, and it is so decided as per Disposition.