[1] The point of time for determining whether a person entitled to registration under the proviso of Article 4-2 of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder's Name has the purpose of evading taxes or avoiding restrictions under the Act and its burden

[2] The case holding that when the three-year grace period under Article 10 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name expires, the purpose of the person entitled to make a registration has been maintained with the intention of evading taxes previously held by him or avoiding restrictions under the Acts and subordinate statutes, or cannot be deemed to have failed to apply for the registration of transfer of ownership with the same purpose

[3] The scope of discretion of an administrative agency on the application of the proviso of Article 4-2 of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder's Name, which is a discretionary mitigation

[1] In light of the fact that the Act on the Registration of Real Estate under Actual Titleholder's Name prescribes that no penalty shall be imposed upon an application for the registration of ownership transfer within three years from the enforcement date of the same Act, regardless of whether the person entitled to registration has failed to apply for the registration of ownership transfer for a long period of time, whether the person entitled to registration who has not applied for the registration of ownership transfer before the enforcement date of the same Act has the purpose of evading taxes or avoiding restrictions under the Acts and subordinate statutes shall be determined at the time when the grace period of three years expires, and that

[2] Where a person entitled to registration fails to file an application for registration of ownership transfer under the name of a person entitled to registration until the expiration of the three-year grace period under Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the judgment became final and conclusive upon receipt of a favorable judgment by filing a lawsuit for registration of ownership transfer against the person liable for registration and his/her heir, but one of the co-inheritors of the person liable for registration becomes aware of the death before the lawsuit was brought again after the judgment was rendered, and he/she failed to file an application for registration of ownership transfer under the name of the person entitled to registration after the grace period has expired, or cannot be deemed to have failed to file an application for registration of ownership transfer for the same purpose with the same purpose

[3] The proviso of Article 4-2 of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name stipulates that a penalty surcharge may be reduced by 50/100 if it is not for the purpose of evading taxes or avoiding restrictions under the statutes, and since it is apparent that it is a discretionary reduction provision, even if the grounds for reduction exist, if the imposing authority imposed the penalty surcharge without reducing the penalty surcharge even when considering the grounds for reduction, it cannot be readily concluded that it is unlawful. However, in the event of an administrative act, the administrative act is an illegal disposition that deviates from or abused the discretionary authority in the event that the imposing authority did not take into account the grounds for reduction, or where the matters that should be included in the subject of consideration of the balancing of profits are omitted, or where there

[1] Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 4-2 of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 26 of the Administrative Litigation Act [2] / [3] Article 10(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, Article 4-2 of the Enforcement Decree of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [3] Article 4-2 of the Enforcement Decree of the Act on

Plaintiff

port of destination

Seoul High Court Decision 2004Nu6619 delivered on January 28, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Article 10 (1) 1 of the Act on the Registration of Real Estate under Actual Name (hereinafter referred to as the "Real Estate Real Name Act") provides that where parties to a contract with the ownership transfer of real estate bear mutually quid pro quo obligations, penalty surcharges shall be imposed on a person entitled to registration who fails to apply for the registration of ownership transfer within three years from the date on which the performance of consideration is completed, within the extent of an amount equivalent to 30/100 of the appraised value of real estate. Article 3 of the Addenda (Article 494, March 30, 1995) provides that where the date prescribed in each subparagraph of Article 10 (1) has elapsed before the Real Estate Real Name Act enters into force, the three-year grace period shall be calculated from the enforcement date of the Act. The proviso of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act provides that where the Real Estate Real Name Act does not evade taxes or avoid restrictions under the Acts and subordinate statutes, it shall be reduced by 50/100 of penalty surcharges if the person entitled to registration fails to apply for the registration of ownership transfer within three years after the enforcement date.

According to the reasoning of the judgment below and the records, the plaintiff filed a lawsuit for ownership transfer registration against the non-party 1 and the non-party 2, and the non-party 3's heir who already died, or the non-party 1 and the non-party 4's heir, and the judgment was finalized on April 30, 1998, before the three-year grace period as stipulated in Article 10 (1) of the Real Estate Real Name Act expires, but the judgment was finalized on June 9 of the same year, but the non-party 5, his wife, among the non-party 3's co-inheritors who were the co-inheritors, did not have any choice to file a lawsuit again after being aware of the death before the lawsuit. The plaintiff could not file a new lawsuit for ownership transfer registration after the grace period from June 30, 1998, which was the grace period for the plaintiff to win all of the co-owners, and the non-party 1 and the non-party 4's co-ownership share could not be viewed as being the non-party 1 and the non-party 1's share.

Meanwhile, the proviso of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act stipulates that a penalty surcharge may be reduced by 50/100 if it is not for the purpose of evading taxes or avoiding restrictions under the statutes. This is clear that the provision is a discretionary reduction provision. Thus, even if the grounds for reduction exist, if the authority imposing the penalty surcharge imposed the full amount without considering the grounds for reduction even though it does not reduce the penalty surcharge, it cannot be determined that it is unlawful. However, in the course of imposing the penalty surcharge in this case, the administrative act is an illegal disposition that deviates from or abused the discretionary authority where it does not include any matters to be included in the subject of consideration of the balance of profits, or where there is a lack of legitimacy and objectivity even though it imposed the balance of profits, if the administrative act does not constitute an abuse of discretionary authority. Accordingly, according to the records, the defendant is deemed to have imposed the full penalty surcharge under the main sentence of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act [Attachment] of the Enforcement Decree of the Act on the Real Estate Real Name.

Although the judgment of the court below is somewhat inappropriate in its reasoning, it is just in its conclusion that the disposition of this case, which imposed a penalty surcharge on the plaintiff without imposing it, despite the grounds for reduction of penalty surcharge under the proviso of Article 4-2 of the Enforcement Decree of the Real Estate Real Name Act, is unlawful, and there is no error of law such as misconception of facts or misunderstanding

Therefore, the 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.

Justices Yoon Jae-sik (Presiding Justice)