Seoul Eastern District Court 2012 Gohap1992 ( October 25, 2013)

The plaintiff is a bona fide third party and cannot oppose the defendant with the withdrawal of the sales contract.

The plaintiff can not oppose the defendant with the withdrawal of a sales contract as a bona fide third party who had an interest in prior to the withdrawal of a false representation of agreement. Thus, the plaintiff's assertion based on the premise that the cancellation of a sales contract can be cancelled and may oppose the defendant with the retroactive effect on the ground of such cancellation is without merit.

2013 or 2014024 Declaration of Consent

The AA

Korea

Seoul Eastern District Court Decision 2012Gahap1992 Decided June 25, 2013

November 14, 2013

November 21, 2013

1. The plaintiff's claim that is changed in exchange in the trial is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

"Cancellation of the judgment of the first instance court. The defendant shall revoke the judgment of the plaintiff. The defendant shall revoke the judgment of the court of first instance. The defendant shall notify the plaintiff of his/her intention to accept the registration of cancellation of the provisional right to claim for ownership transfer registration, which was completed on August 29, 2012 by the Seoul Dong District Court's Gangwon-dong District Court's Office of Registry of Registry of 48102, which was received on August 29, 2012 (the plaintiff changed the plaintiff's claim in exchange for the claim at the trial. Although the plaintiff did not attach "the list" to the application for modification of the purport of the claim as of August 20, 20

1. Basic facts

A. BB association (hereinafter referred to as BB association) filed a lawsuit against the Plaintiff on May 10, 2007 (hereinafter referred to as the “former real estate”) No. 2, 1, 2007, which had no ownership transfer registration number 2, as indicated in [Attachment No. 1] List 2, the Seoul Eastern District Court No. 26807, against the Plaintiff on May 10, 2007, which had no ownership transfer registration number 1, 2008, and which had no ownership transfer registration number 2, the attachment No. 1, 201, which had no ownership transfer registration number 1, 208. The Plaintiff received the ownership transfer registration of the previous real estate as the attachment No. 41, 200, which had no ownership transfer registration number 1,000, as the attachment No. 1, 201, for the reason that the attachment registration No. 5, as to the previous real estate was accepted by the Seoul High Court No. 41,

2. The plaintiff's assertion

In order to prevent the provisional disposition of BB union, the contract of this case is null and void or cancelled as a false declaration of agreement with KimCC on August 29, 2012. The plaintiff cancelled the contract of this case on August 29, 2012, and the defendant is a creditor who seized the right to claim ownership transfer registration of KimCC pursuant to the contract of this case, and is not a third party under the proviso of Article 548(1) of the Civil Act. Thus, as long as an order of seizure based on which the right to claim ownership transfer is extinguished retroactively due to the retroactive effect of cancellation is invalidated, the defendant, the execution creditor, has no right from the beginning. Therefore, the registration of the new real estate of this case No. 2 shall be cancelled. Accordingly, the defendant, the third party having interest in the registration of the 2 provisional registration of this case, is obligated to express his/her intention to accept the registration of cancellation.

3. Determination

(a) Nullity of false declaration of conspiracy and the relationship between the original and the defendant;

The promise to sell and purchase of this case was concluded most recently by the plaintiff and KimCC to oppose preservative measures, etc. against BB union, and thus null and void as it constitutes false representation. However, pursuant to Article 108(2) of the Civil Act, if a claim arising from a legal relationship formed externally by false representation was provisionally seized, the provisional attachment authority has a new legal interest based on false representation, and thus constitutes a third party under Article 108(2) of the Civil Act (see Supreme Court Decision 2003Da70041, May 28, 2004). It is reasonable to deem that the defendant is a person who seized the right to claim ownership transfer registration of the former real estate of KimCC, a claim arising from the purchase and sale of this case, and has a new legal interest based on the purchase and sale of this case. Article 108(2)3 of the Civil Act is presumed to be a third party under Article 108(2) of the Civil Act, barring any special circumstance, and thus, the plaintiff cannot be deemed to be a third party under bad faith (see Supreme Court Decision 2006Da3101.

B. Judgment on the Plaintiff’s assertion of rescission

In light of the fact that a juristic act which has been null and void through a false conspiracy is not subject to rescission because it is not subject to rescission in theory, but can be treated as effective in relation to a third party, so it is necessary to withdraw it, and once one declaration of intention exists, it is difficult to see that it is impossible to clearly remove its effect as long as it is impossible to do so, a withdrawal of a false conspiracy equivalent to the cancellation of agreement may be recognized. However, the withdrawal of a false conspiracy can be problematic only in relation to a third party. However, in light of the purport of Article 108(2) of the Civil Act, it shall not be asserted against a bona fide third party who has been interested in prior to such withdrawal, and it shall be reasonable to view that a withdrawal can be asserted only when the removal of the appearance of the false conspiracy with a third party who has interests after such withdrawal is made.

As to the instant case, the Defendant constitutes a bona fide third party who had an interest in prior to the withdrawal of a false representation in conspiracy alleged by the Plaintiff, and the Plaintiff cannot oppose the Defendant with the withdrawal of the instant sales contract. Thus, the Plaintiff’s assertion based on the premise that it is possible to cancel the instant sales contract and may oppose the Defendant with the retroactive effect that was based on the revocation.

3. Conclusion

Therefore, the plaintiff's claim that has been changed in exchange at the trial is dismissed as it is without merit, and it is so decided as per Disposition.