A. Whether provisional registration is appropriate for preserving a real right claim (negative)

B. The meaning of limitation on retroactive effect due to termination of contract

C. Whether a provisional registration of preservation of the right to claim ownership transfer registration under an agreement of restitution can be made in preparation for cases where the retroactive effect due to termination of contract is restricted (affirmative)

(d) The status of a third purchaser in case where the right to claim ownership transfer registration under the contract is preserved by provisional registration in preparation for a case where the retroactive effect due to the cancellation of contract is restricted.

A. The claim under Article 3 of the Registration of Real Estate Act refers to the claim that aims at changing the real right or the right of lease of real estate under Article 2 of the same Act. Therefore, provisional registration under the Registration of Real Estate Act can only be made in order to preserve the above claim, and it cannot be made in order to preserve a real right claim that is not a claim.

B. The real right, the execution of which was changed upon the cancellation of the contract, is naturally returned to its original condition where the contract had not been entered into. However, where the contract was terminated after the transfer registration of ownership was made to a third party on the subject matter of sale prior to the cancellation of the contract, the seller cannot claim for the cancellation of the registration of transfer of ownership in the name of the buyer on the basis of ownership, since the ownership is not returned

C. If a contract is rescinded between the parties at the time of the sales contract, if there is an agreement between the parties to the contract and the seller at the time of the registration of ownership transfer, the seller may demand the buyer to implement the procedure for the registration of ownership transfer pursuant to such agreement. In this case, the seller's right to claim the registration of ownership transfer is a right to claim the change of real right, and such right can

D. The provisional registration is effective to preserve the priority order of the principal registration and when the principal registration based on the provisional registration is completed after the provisional registration is retroactively from the time the priority order of the principal registration was completed, and the interim disposition taken before the provisional registration is invalidated after the provisional registration. Therefore, even in a case where a provisional registration is made to preserve a claim under an agreement to register the ownership transfer to the seller by way of restitution at the time of cancellation of a sales contract, the registration of transfer of ownership in the name of a third party, which was made before the provisional registration after the provisional registration, shall not be exempted from cancellation when the principal registration based on the provisional registration after the provisional registration is completed. The right acquired by a third party, who is not the party to a sales contract, after the provisional registration is completed, shall be the right acquired under the condition that the principal registration based on the claim preserved by the provisional registration is completed, and the third party's status shall not be prior to the seller's right preserved by the provisional registration, and as such, the right to claim ownership transfer registration arising from an agreement between the parties to a sales contract is not directly related to the proviso of Article 548 (1).

(d)Article 548(1) of the Civil Code;

[Judgment of the court below]

Defendant Attorney Presiding Justice and Noh Jeong-hee

Seoul High Court Decision 80Na2429 delivered on October 30, 1981

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

The grounds of appeal are examined.

1. (A) On February 1, 1979, the court below concluded a sales contract with the non-party to sell the instant real estate owned by the defendant to the non-party above, and confirmed on March 21 of the same year that the transfer registration under the name of the non-party was made with respect to the said real estate while the remaining purchase price of KRW 13,00,000 has not been paid, while the above real estate was registered under the non-party's name, the provisional registration of preservation of the right to claim the transfer registration under the purchase and sale promise was made under the non-party's name as to the above real estate as of August 9 of the same year, and then the ownership transfer registration under the plaintiff's name was made under the non-party's name as of September

(B) The provisional registration of the above provisional registration under the name of the defendant was aimed at restoring the defendant's ownership in the event that the above non-party delays the above remaining payment obligation and the above non-party delayed the performance of the obligation to pay the remaining amount, and thus, the defendant revoked the above contract and completed the provisional registration based on the above provisional registration for the purpose of restoring ownership. However, the defendant agreed that the above non-party's transfer of ownership to the defendant's name was made at the transfer of ownership between the above non-party and the above non-party, and the above provisional registration was made pursuant to the above agreement between the defendant and the above non-party.

(C) A provisional registration under the Registration of Real Estate Act may only be made in order to preserve a claim for change in a real right under Article 2 of the same Act, and if the above contract is rescinded as alleged by the defendant, it cannot be made in order to preserve a claim for change in a real right that is not a claim, and if the above contract is rescinded as alleged by the defendant, the real right that is changed due to the performance of the contract is returned to the state where the contract was not entered into. Thus, the ground for the defendant's claim for cancellation of ownership transfer registration or transfer registration is that the above non-party is a claim for a real right based on the ownership, and the provisional registration is not established to preserve the above right, so if the purport of the provisional registration is to preserve the above right, the provisional registration is null and void, and even if the provisional registration under the name of the defendant is established under the current law, the plaintiff is a third party who acquired the ownership based on the registration before the cancellation of the contract, and the status of the substantive law as the above provisional registration cannot be affected by the validity of the above provisional registration.

2. (A) Article 3 of the Registration of Real Estate Act provides that provisional registration shall be made when it is intended to preserve the right to claim the creation, transfer, change, or extinguishment of the rights as set forth in Article 2 of the same Act. The term "the right to claim........" in this context refers to the right to claim the change of the real right or the right to lease of real property as set forth in Article 2. Thus, the provisional registration can only be made in order to preserve the above right to claim, and it cannot be made in order to preserve the right to claim the real right, not the right to claim. Thus, the opinion of the court below on this point is justified.

(B) The decision of a party member or the retroactive effect of the cancellation of a contract cannot be prejudicial to the rights of a third party because the real right, as a matter of course, to which the performance of the contract was changed upon the cancellation of the contract, is to return to its original condition without the contract (the proviso of Article 548 (1) of the Civil Act). Therefore, if a third party has acquired a new right based on the legal effect arising out of the contract prior to the cancellation of the contract, the retroactive effect of the cancellation of the contract shall be limited to the extent that the third party does not infringe on the rights of the third party. Therefore, in this case, the effect of the cancellation of the contract by the defendant who is the seller, before the cancellation of the contract, shall not directly affect the plaintiff's ownership acquired the real estate of this case from the non-party who was the buyer before the termination of the contract and completed the registration of ownership transfer in its name.

Therefore, the judgment of the court below that the defendant's claim for cancellation of ownership transfer registration or transfer registration against the non-party is a real right claim based on ownership under the premise that the ownership of the real estate in this case was attributed to the defendant due to the effect of cancellation of the sales contract in this case is erroneous in the misapprehension of legal principles as to the retroactive effect of termination

(C) If a contract is terminated after a transfer of ownership is made to a third party with respect to the subject matter of sale prior to the cancellation of the contract as above, the effect of cancellation of the contract is that the ownership is not naturally returned to the seller, and the seller is not entitled to claim cancellation of the transfer of ownership under the name of the buyer, but if the contract is rescinded between the contracting parties at the time of the contract, the buyer may claim the buyer to implement the procedure for transfer of ownership pursuant to the agreement if the seller agrees to pay the transfer of ownership to the seller. In such a case (in a case where the contract is rescinded after the transfer of ownership is made to the third party), the seller's right to claim transfer of ownership is the right to claim the change of real right, and such right can be preserved by the provisional registration. In addition, the provisional registration is effective to preserve the priority of the principal registration, and since the interim disposition is retroactively made after the provisional registration, if the provisional registration is invalidated after the provisional registration to preserve the right to claim the transfer of ownership under the agreement to restore to the seller at the time of cancellation, the transfer of ownership registration becomes void after the provisional registration.

After the provisional registration as above, the right acquired by a third party who is not a contracting party is the right acquired in the state having the possibility of invalidation if the principal registration based on the claim preserved by the provisional registration already made is completed, and the status of such third party shall not take the priority over the seller's right preserved by the provisional registration. In addition, the seller's right to claim the transfer registration of ownership arising under an agreement between the contracting parties is not derived from the retroactive effect of the cancellation of the contract itself, and the provisions of the proviso of Article 548 (1) of the Civil Act on the realization of the right to claim the registration and the limitation of the retroactive effect of the cancellation of the contract are

Therefore, in the case of this case, if the provisional registration under the name of the defendant was made pursuant to an agreement between the defendant and the non-party as alleged by the defendant, such provisional registration is valid, and if the ownership transfer registration under the name of the plaintiff which was made before the principal registration was made after such provisional registration is made based on the above provisional registration, the cancellation shall not be exempted. Therefore, the court below should decide whether the provisional registration under the name of the defendant was completed pursuant to the agreement as alleged by the defendant, and determine whether the defendant's assertion is legitimate by examining whether the provisional registration under the name of the defendant was completed according to the agreement as alleged by the defendant. The court below's rejection of the defendant's assertion without examining

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

Justices Jeong Tae-tae (Presiding Justice)