The meaning of "third party having an interest in registration" under Article 171 of the Registration of Real Estate Act and the standard for determining whether the third party bears the duty of consent

It is a person who is formally recognized by entry in the registry that is likely to cause damage as a right holder in the registration that is likely to cause damage by cancelling the registration of disturbance of a third party who has interests in the registration under Article 171 of the Registration of Real Estate Act. Whether the third party bears the duty of consent is determined by whether the third party bears the duty of consent in relation to the right holder of the cancellation registration.

Article 171 of the Registration of Real Estate Act

Plaintiff Co., Ltd. (Attorney Jeong Tae-tae et al., Counsel for the plaintiff-appellant)

Korea

Gwangju District Court Decision 2004Na10844 Decided July 15, 2005

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

The grounds of appeal are examined.

Article 171 of the Registration of Real Estate Act provides that when an application for cancellation of a registration is filed by a third party who has an interest in the registration, a written consent or a certified copy of the judgment against it shall be attached to the application form, if any, to the third party who has an interest in the registration, and which is likely to cause damage by making a registration of cancellation on the third party who has an interest in the registration as referred to in this context, and the third party is recognized formally by the entry in the registration form, and whether the third party bears an obligation of acceptance is determined by the substantive law in relation to the third party with the right to the registration of cancellation.

The court below acknowledged the fact that on June 29, 199, the forest land 27,669 square meters (hereinafter “instant land”) in Jeonnam-gun, Jeonnam-gun was originally owned by Nonparty 1; on June 14, 1999, the ownership transfer registration based on the sale was made under the name of Nonparty 2 Co., Ltd. (hereinafter “Nonindicted Company 2”); on December 11, 2001 based on the National Tax Collection Act, the Defendant completed the attachment registration on the instant land; on behalf of Nonparty 1, the Plaintiff filed a lawsuit claiming cancellation of ownership transfer registration against Nonparty 2 on November 28, 2002 under the jurisdiction of the Gwangju metropolitan District Court (Case No. 1 omitted); and on December 31, 2002, the judgment became final and conclusive.

In light of the above facts in light of the legal principles as seen earlier, the defendant is likely to suffer damage due to the cancellation of the registration of transfer of ownership in the name of the non-party 2 company, and is deemed to be an interested third party in the registration as to the cancellation of the registration of transfer of ownership in the name of the non-party 2 company. Meanwhile, the plaintiff asserted that the non-party 2 company obtained necessary documents, such as seal imprint, by deceiving the non-party 1 without any reason, and that the cause is null and void. Thus, if so asserted, the defendant is liable to accept the cancellation of the registration of transfer of ownership in

Nevertheless, without examining whether the registration of transfer of ownership in the name of the above non-party 2 was cancelled for any reason, and whether it is possible to oppose the defendant, the court below held that the defendant did not constitute a third party with an interest in the register that is obligated to accept the cancellation of the registration of transfer of ownership in the name of the non-party 2, solely on the ground that the registration of seizure was completed before the judgment ordering the cancellation of the registration of transfer of ownership in the name of the non-party 2 became final and conclusive, and that the defendant did not constitute a third party with an interest in the register that is obligated to accept the cancellation of the registration of transfer of ownership in the name of the non

Supreme Court Decision 79Da847 Decided July 10, 1979 cited by the judgment below is related to a case where a third party who has an interest in the registration is not recognized under the substantive law with respect to the cancellation of registration, and it is not appropriate to invoke this case.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)