[1] Whether the effect of provisional disposition prohibiting the disposal of real estate affects the registration of cancellation due to invalidation of the cause

[2] The validity of cancellation of the registration of ownership transfer without attaching a written consent of the interested third party

[1] Where a provisional disposition on real estate was registered but the registration under the name of the debtor of provisional disposition at the time of such provisional disposition is cancelled by a final judgment as invalid, and thus his ownership is returned to the name of the former owner, such provisional disposition shall not be deemed an act of disposal prohibited by the provisional disposition. However, where there are special circumstances, such as where the debtor of provisional disposition revoked the registration under the name of the debtor of provisional disposition and transfers the registration to a third party with the intention to exclude the effect of the provisional disposition already made while disposing of ownership to a third party, it shall be included in the act of disposal prohibited by the provisional disposition.

[2] According to Article 171 of the Registration of Real Estate Act, where an application for cancellation of a registration is filed and there is a third party who has an interest in the registration, the registration for cancellation shall be accompanied by a written consent or a certified copy of the judgment against the third party. Thus, where a registration for cancellation is made without attaching a written consent of the interested third party, the registration for cancellation shall be invalid in relation to the third party. However, even if a registration for cancellation is made with respect to the registration for cancellation without attaching a written consent of the third party, even if the registration for cancellation is made with respect to the third party without attaching a written consent, it shall be valid in relation to the relation with the third party.

[1] Article 714 of the Civil Procedure Act / [2] Article 171 of the Registration of Real Estate Act, Article 186 of the Civil Act

[2] Supreme Court Decision 79Da847 delivered on July 10, 1979 (Gong1979, 12074)

Plaintiff (Attorney Choi Jae-ho, Counsel for the plaintiff-appellant)

Defendant

Daegu District Court Decision 94Na8905 delivered on November 18, 1994

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the above provisional disposition on April 18, 1985 on the real estate of this case which was originally registered as owned by non-party 1, and the part (A) at the time of original adjudication on the real estate of this case was owned, occupied, and used separately by the plaintiff, and the plaintiff filed a provisional disposition on June 28, 1993 under the Daegu District Court No. 6834, which was accepted on June 28, 1993, against the non-party 2 (the above non-party 2 died, and the non-party 11 and the above non-party 9 were not registered on September 29, 1992 on the non-party 1's non-party 1's non-party 1's non-party 3's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1's non-party 98's ownership.

In light of the records, we affirm the fact-finding of the court below. The above fact-finding of the court below is justified. If the above registration in the name of the defendant as to the 1/2 portion of the above part of the above (A) is cancelled as the cause becomes null and void and the former owner returns to the former owner's name, it cannot be deemed a disposition prohibited by the provisional disposition of this case. However, if the defendant disposes of the above shares to the above non-party 3 and the non-party 11, and there are special circumstances such as cancellation of the above registration and transfer of registration to the above non-party 3 and the non-party 11, it shall be included in the disposition prohibited by the provisional disposition of this case. In this case, there is no evidence to view that the above special circumstances were in addition to the evidence duly rejected by the court below, the cancellation of the registration in the name of the defendant and transfer of registration in the name of the non-party 3 and non-party 111 cannot be deemed to violate the plaintiff's disposition of this case.

Although the judgment of the court below is somewhat inappropriate, it seems to be judged to the same purport. There is no reason to oppose this.

However, according to Article 171 of the Registration of Real Estate Act, when an application for cancellation of a registration is filed with a third party who has an interest in the registration, the registration of cancellation shall be accompanied by a written consent or a certified copy of the court decision that can be asserted against it (hereinafter only referred to as a written consent, etc.). Thus, if a registration of cancellation is made without attaching a written consent, etc. from the interested third party, the registration of cancellation shall be invalid in relation to the third party. However, if the third party has an obligation to consent with respect to the above registration of cancellation, even if the registration of cancellation is made without attaching a written consent, it shall be interpreted that the registration of cancellation is valid in relation to the above third party because it is consistent with the substantive legal relations, and thus,

In this case, if there is no evidence to acknowledge that the consent of the plaintiff, who is an interested party at the time of application for cancellation of the registration in the name of the defendant with respect to the 1/2 shares above (A) was not attached to the registration in the name of the defendant, and that the plaintiff has a duty to consent with respect to the cancellation, the cancellation of the above registration in the name of the defendant will be null and void in relation to the plaintiff. Thus, even if the registration in the name of the defendant was cancelled and the registration in the name of the above non-party 3 and the non-party 11 was completed, there is room to deem that the defendant's obligation to transfer the registration in the name of the defendant was omitted. Thus, the court below should have deliberated on whether the plaintiff's consent was attached at the time of application for cancellation of the above registration in the name

Therefore, the court below, which did not reach this point, did not err by failing to exhaust all the necessary deliberations or by misapprehending the legal principles on non-performance, and such illegality is obvious that it affected the conclusion of the judgment.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)