Even where provisional registration of invalidation by a conspiracy is seized, seizure shall not be null and void.

Even if provisional registration of purchase and sale is null and void due to a false conspiracy, the plaintiff cannot oppose the defendant who is a bona fide third party.

Article 108 of the Civil Act

2013da 95710 Provisional registration cancellation, etc.

○ ○

Korea

2014.03.9

oly 2014.16

1. Defendant Song-○ shall implement the procedure for the cancellation of the provisional registration of the right to claim ownership transfer registration, which was completed on April 2, 2003 by the Incheon District Court No. 35695, with respect to the real estate listed in the attached list, to the Plaintiff.

2. The plaintiff's claim against the defendant Republic of Korea is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and Defendant Song-○ is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant Republic of Korea, respectively.

The judgment as referred to in Paragraph (1) of this Article and the defendant Republic of Korea have expressed their intention to accept the registration of cancellation of provisional registration of right to claim ownership transfer registration (hereinafter referred to as "provisional registration of this case") as to the real estate listed in Paragraph (1) of this Article (hereinafter referred to as "real estate of this case").

1. Basic facts

A. On April 1, 2003, the Plaintiff entered into a pre-sale agreement with Defendant Song-○ with regard to the instant real estate owned by him (hereinafter “instant pre-sale agreement”) and completed the instant provisional registration with Defendant Song-○ on the following day on the ground of the pre-sale agreement.

B. On the other hand, as Defendant Song-○ failed to pay the global income tax, on November 7, 2012, the Incheon Tax Office under the jurisdiction of the Republic of Korea issued a seizure claim against Defendant Song-○’s right to transfer ownership of the instant real estate (hereinafter “instant seizure”), and on the following day, the Incheon District Court completed the additional registration of seizure against the instant provisional registration under Article 100748 of the receipt of the Incheon District Court’s receipt of the instant provisional registration (hereinafter “instant seizure registration”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Eul evidence 1-2, and the purport of the whole pleadings.

2. Determination on the Plaintiff’s claim against Defendant Song-○○

A. The fact that the Plaintiff and Defendant Song-○ did not actually conclude a pre-sale agreement on the instant real estate, in collusion with the provisional registration of a false right to claim ownership transfer, and that the provisional registration of this case was completed, does not conflict between the said parties.

B. If so, the sales contract of this case constitutes a false conspiracy and becomes null and void. Thus, the defendant Song-○ is obligated to implement the procedure for cancellation registration of the provisional registration of this case to the plaintiff.

3. Determination on the Plaintiff’s claim against the Defendant Republic of Korea

A. The plaintiff's assertion

1) The provisional registration of this case is registration of invalidity of cause, since the Plaintiff, in collusion with the Defendant, without any cause and concluded a false pre-sale agreement and completed a false pre-sale agreement.

2) Although the instant reservation was completed on April 2, 2003, Defendant Song-○ did not exercise the right to complete the purchase and sale reservation until the lapse of ten years from that right, and the right to complete the purchase and sale reservation became extinct by the limit of the exclusion period. As such, the instant provisional registration is already invalidated.

3) Therefore, the attachment registration of this case as to the provisional registration of this case is also null and void, and the defendant is a third party interested in the registry as to the cancellation of the provisional registration of this case, and the defendant is obligated to declare to the plaintiff the intention of acceptance as to the cancellation of the provisional registration

B. Determination

1) Invalidity of false conspiracy and the relationship between the original and the Defendant

As seen earlier, the promise to sell and purchase of this case was concluded by the Plaintiff and the Defendant ○○○, which constitutes a false conspiracy and thus null and void. However, pursuant to Article 108(2) of the Civil Act, a bona fide third party cannot oppose the invalidation of such declaration of intent pursuant to Article 108(2) of the Civil Act. However, in case where 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, e.g., Supreme Court Decision 2003Da7041, May 28, 2004). Thus, the Defendant, as a seizure authority, seized the right to claim ownership transfer of the instant real estate of the Defendant ○○○○, a claim arising from the instant promise to sell and purchase this case, constitutes a third party under Article 108(2) of the Civil Act, which has a new legal interest based on the instant promise to sell and sell this case.

2) Determination as to the exclusion period and assertion of the Plaintiff’s right to complete purchase and sale reservation

The meaning of "a bona fide third party shall not make an objection" through the invalidity of a false agreement with the other party that has conspired with the other party is null and void, and the other party may assert the invalidity of the false agreement. However, not only the other party to the false agreement but also the third party cannot assert the invalidity of the false agreement, and also the other party who has conspired with the other party cannot assert the invalidity of the false agreement. Thus, the contract of this case is still null and void between the plaintiff and the defendant Song-○. However, if the contract is null and void, the contract of this case cannot be effective in accordance with the terms and conditions of the contract, and the other party cannot perform any obligation without imposing any obligation in accordance with the terms and conditions of the contract, so long as the contract of this case is null and void, the contract of this case cannot exercise the right to complete the purchase and sale pursuant thereto, and the exclusion period under the premise that the right to complete the purchase and sale should be exercised does not run.

3) Sub-decisions

Therefore, even if the promise to sell and purchase of this case is null and void due to a false conspiracy, the plaintiff cannot oppose the defendant Republic of Korea as a bona fide third party, and as long as the limitation period of the right to complete the purchase and sale cannot be recognized, the defendant Republic of Korea has no obligation to express his/her consent with respect to the cancellation of the provisional registration of this case.

4. Conclusion

Thus, the plaintiff's claim against the defendant Song-○ is justified, and the claim against the defendant is dismissed as it is without merit. It is so decided as per Disposition.