[1] The validity of the false indication of conspiracy against a third party acting in good faith

[2] The case reversing the judgment of the court below that a person, who was subject to a cancellation of the registration of ownership transfer due to a conspired provisional registration and principal registration, may assert the invalidity of false indication against a third party acting in good faith who acquired the real estate in accordance with the principal registration

[1] In principle, a false declaration of intent made in collusion with the other party is null and void and any person may assert the invalidity thereof. However, with respect to a third party in good faith who has established a de facto new legal interest on the basis of the legal relationship formed by a false declaration as a person other than the party concerned and the general successor, not only the party concerned of the false declaration but also any person who has established a new legal interest is not a party concerned of the false declaration, and therefore, with respect to a third party in good faith

[2] The case reversing the judgment of the court below which held that Gap can assert that Eul is the owner of the real estate even if Eul is bona fide, on the ground that each provisional registration made by the person in good faith is valid for Eul, and each false registration made by the person in good faith, and each false registration made by the person in good faith is valid for Eul, on the ground that the provisional registration made by the person in good faith and the principal registration based on the principal registration based on the former registration, and the former registration based on the latter registration, are valid for Eul's transfer of ownership based on the latter registration, and that Eul's transfer of ownership based on the latter registration is also valid for Eul's transfer of ownership based on the latter registration, even if Eul is bona fide for Eul's transfer and acquisition of real estate, if Eul did not know that each provisional registration made by the person in good faith is the person in good faith.

[1] Article 108 (2) of the Civil Act / [2] Article 108 (2) of the Civil Act

[1] Supreme Court Decision 80Da1403 delivered on May 25, 1982 (Gong1982, 594) Supreme Court Decision 82Da594 delivered on January 18, 1983 (Gong1983, 422)

Plaintiff 1 and one other (Attorney Lee Sun-soo, Counsel for the plaintiff-appellant)

Defendant 1 and one other (the operation of leap, Counsel for the defendant-appellant)

Seoul High Court Decision 92Na53455 delivered on January 26, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below held that the above real estate was registered under the name of the non-party 1 and the non-party 2's provisional registration No. 408, 504, 506 and 11 (hereinafter "each of the real estate of this case") on the ground that the above real estate was registered under the non-party 1's name and the non-party 2's ownership transfer registration No. 9 was not registered under the above non-party 1's name and the non-party 2's ownership transfer registration No. 9 was invalid on November 9, 1987, and that each of the above real estate was registered under the non-party 1's name and the non-party 2's ownership transfer registration No. 9 was registered under the non-party 1's name and the non-party 2's ownership transfer registration was not registered under the non-party 1's ownership transfer registration under the above name of the non-party 1. The plaintiffs were still registered under the non-party 1's name and the above.

According to Article 108 of the former Civil Code, a false declaration of intention (the next simple false declaration) conspired with the other party is null and void. In principle, anyone can assert its invalidation. However, with respect to a bona fide third party who has de facto legal interest based on the legal relationship formed by a false declaration as well as the parties to the false declaration, anyone, as well as the parties to the false declaration, can not oppose the invalidity of the false declaration. Therefore, in relation to the above third party in good faith, the aforementioned false declaration of intention is effective as indicated. Thus, if the Defendants did not know that the provisional registration of the names between Nonparty 1 and Nonparty 2 and each declaration of intention causing the principal registration based thereon was made based on the provisional registration of Nonparty 1 and Nonparty 2, the plaintiffs cannot claim that the above provisional registration of Nonparty 1 and the above provisional registration of Nonparty 2 are invalid, and the ownership transfer registration of Nonparty 1 becomes effective after each of the above provisional registration of this case's name and ownership transfer registration of this case's name is valid. Therefore, the above provisional registration of the Defendants' names and ownership registration of this case's name are invalid.

Nevertheless, without examining whether the Defendants actually acquired each of the instant real estate from Nonparty 2, and whether each of the instant provisional registrations and each of the instant principal registrations based thereon was unaware of the false indication. In other words, even if the Defendants were bona fide, the lower court determined that the Defendants were the owner of each of the instant real estate, and that the registration of transfer of ownership in the name of the Defendants as to each of the instant real estate was the registration of invalidation of the cause of the false indication with regard to the third parties acting in good faith, the lower court erred by misapprehending the legal doctrine on the validity of false indication against the third parties acting in good faith and failing to deliberate, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

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

Justices Park Jong-ho (Presiding Justice)