(영문) 광주지방법원 2006.4.7.선고 2005나10216 판결

A. Creditor: With respect to the case of applying for provisional disposition against the subdivision of real estate in the Gwangju District Court 2005Kadan1308 real estate area between the obligee and the obligor, the above court shall approve the provisional disposition order issued by the above court on March 15, 2005 by virtue of the real estate stated in the separate sheet.

B. Obligor: Revocation of the above provisional disposition order. The obligee's request for provisional disposition is dismissed.

2. Purport of appeal

The judgment of the first instance shall be revoked. The above provisional disposition decision shall be authorized.

Reasons

1. Determination of provisional disposition;

The fact that the creditor asserted against the debtor the right to claim invalidation of the cause of the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case") and the ownership transfer registration based on the restoration of real name is preserved right, and the Gwangju District Court rendered a request for provisional disposition prohibiting the disposal of the real estate of this case (hereinafter referred to as the "provisional disposition order of this case") as the 2005Kadan1308, which was accepted by the above court, is clear in the record that the provisional disposition order of this case was rendered on March 15, 2005.

2. Determination as to the existence of a preserved right

(a) Basic facts

(1) The instant real estate was divided into 82-1 forest land in the Dogsan-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-do, and part of which was divided into 82-15 forest land in the Dog-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-ri-si (hereinafter referred to as "the instant real estate" without distinguishing the above after the above division), and it was originally owned by the State, and was sold to 00 on July 8, 197, and completed the ownership transfer registration on July 25, 1992, and completed the ownership transfer registration on May 15, 1992 under the name of the creditor on November 3, 191.

(2) On May 30, 2003, the creditor again sold the instant real estate to Nonparty A on the same date, and accordingly, on June 3 of the same year, the ownership transfer registration was made in the name of Nonparty A on the same date, and thereafter, the ownership transfer registration was made in the name of the debtor on August 8 of the same year.

[Reasons for Recognition] Facts without dispute, entry of Evidence Nos. 1 and 2, the purport of the whole pleadings

B. Creditor's assertion

The creditor asserts that the real estate of this case was sold again to non-party A on May 30, 2003 in accordance with Article 53-2 of the State Property Act and Article 53-2 of the Guidelines for Special Sale of the Ministry of Finance and Economy (hereinafter referred to as the "special sale of this case"), but the special sale of the real estate is limited to a bona fide purchaser, and that the above special sale of the real estate is subject to the subsequent sale of the real estate of this case. Since the tax official, who was in charge of the non-state property at the time, acquired the ownership transfer registration after December 1, 1997, by misappropriation or borrowing the maximum amount of 00 persons using his position. The creditor claimed that the special sale of the real estate of this case was null and void because he violated the provisions of Article 53-2 of the State Property Act and the guidelines for sale of the above special case, and that the non-party A's ownership transfer registration of this case is also subject to the invalidation of the ownership transfer registration of this case for non-party A on the ground of sale of this case.

C. Determination

Article 53-2 of the State Property Act provides, "If the property is sold to a person who returned it to the State voluntarily after acquiring it in good faith, through a settlement in court or any other cause as determined by the Presidential Decree, the sale price shall be paid in installments between 12 years or less without interest, or the sale price shall be paid in one lump sum at one time after deducting an amount not exceeding 80 percent of the sale price from the sale price," and Article 57-2 (1) of the Enforcement Decree of the State Property Act provides, "The government property concealed by each subparagraph of Article 53-2 of the State Property Act shall be registered or registered in the name of a person other than the State in the registry or public records, and the standard for payment of sale price of the property concealed by the State shall be determined according to the reason that the sale price was returned to the State, as determined by the Presidential Decree, and there is no clear explanation that the sale of the above property was in violation of the guidelines for sale of the non-party to this case before the enforcement date of this case's guidelines."

Therefore, the creditor's assertion that the debtor has the right to claim the transfer of ownership on the real estate of this case on the premise that the sale of this case is null and void is without merit.

3. Conclusion

Therefore, the application for provisional disposition of this case is without merit due to the lack of vindication of the right to be preserved. Therefore, the decision of this case should be revoked and the creditor's application for provisional disposition of this case should be dismissed. The decision of the court of first instance is just as it is concluded, and the creditor's appeal is dismissed. It is so decided as per Disposition.