Busan District Court 2010 Gohap13056, 20207 ( August 10, 2011)

Where the registration of real estate is completed, it shall be presumed legitimate unless there are special circumstances.

The disposition of seizure of the non-party's non-party's delinquent amount against the non-party's non-party's delinquent amount was made on the land of this case registered as the right holder, and as long as the non-party's delinquent amount was not invalid on the land of this case, the seizure disposition is justifiable.

Article 53 of the National Tax Collection Act: Conditions to cancel attachment

2011Na6854. Implementation of the procedures for cancellation of the registration of creation of a mortgage

2011Na6861 (Counterclaim) Implementation of the procedures for ownership transfer registration

The AA

1. BB2. KimCC 3. Korea

4. DD Guarantee Insurance Co., Ltd. 5. MaE;

Busan District Court Decision 2010Na13056, 20207 decided August 10, 201

September 24, 2013

December 10, 2013

1. Of the judgment of the court of first instance, the main claim and counterclaim against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), including the Plaintiff’s claim to be changed and added in the trial proceedings, shall be changed as follows:

A. Of the Plaintiff’s principal claim against the Plaintiff (Counterclaim Defendant), the part of the claim for cancellation of the right to collateral security and the claim for the agreed amount are dismissed in exchange in the first instance (a confirmation of cancellation of the contract and the claim for unjust enrichment).

B. In accordance with the conjunctive claim added at the trial, the accuracy limit of the Defendant (Counterclaim Plaintiff) shall pay the Plaintiff (Counterclaim Defendant) OOOOE at the same time as the Plaintiff (Counterclaim Defendant) takes the procedure for ownership transfer registration on September 22, 2004 with respect to shares of 480,429/1,09 of the real estate listed in the separate sheet (1) and 1/4 of the real estate listed in the separate sheet (2) from the Plaintiff (Counterclaim Plaintiff).

C. On September 22, 2004, the Plaintiff (Counterclaim Defendant) received from the Defendant (Counterclaim Plaintiff)’s accurate system of OOO, and simultaneously implement the registration procedure for transfer of ownership on September 22, 2004 with respect to shares of 480,429 of the real estate listed in the attached Table No. 1,093,090 among the real estate listed in the attached Table No. 1, and one-fourth of the real estate listed in the attached Table No. 1, 204.

D. The remainder of the conjunctive claim added at the trial of the Plaintiff (Counterclaim Defendant) and the remainder of the Defendant (Counterclaim Plaintiff)’s accurate claim are all dismissed.

2. All appeals filed by the Plaintiff (Counterclaim Defendant) against Defendant BB, KimCC, Korea, DD Guarantee Insurance Co., Ltd., and saltE are dismissed.

3. The total cost of the lawsuit incurred between the plaintiff (the defendant in the principal lawsuit) and the defendant (the plaintiff in the counterclaim) bears 50% of the total cost of the principal lawsuit and the counterclaim, and the remainder 50% of the total cost of the counterclaim is assessed against the plaintiff (the plaintiff in the counterclaim) and the defendant (the plaintiff in the principal lawsuit) accurate. The cost of the appeal incurred between the plaintiff (the plaintiff in the principal lawsuit) and the remainder

1. Purport of claim

(a) Main claim;

"1) The correct limit of the Plaintiff (Counterclaim Plaintiff; hereinafter “Plaintiff”) is 480,429/1,09 of shares out of the land listed in the separate sheet (1) and 1/4 of shares out of the land listed in the separate sheet (2) is as follows; the Busan District Court's Gangseo-gu Office of Registry No. 19797, Oct. 11, 2004; the procedure for the cancellation of the registration of the establishment of the neighboring mortgage was completed; Defendant BBB, KimCC, Korea, DDD surety, and DE were to make an expression of intent of each consent as to the cancellation of the registration of the establishment of the neighboring mortgage; 2) the accurate limit of the Plaintiff (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) is to verify that the conjunctive limit of the purchase and sale contract was exchanged on September 24, 2004 between the Plaintiff and the Defendant's correct limit of the Plaintiff's claim to the Plaintiff for the cancellation of the registration of the establishment of the neighboring mortgage; and Defendant O and 2000.25 of the purport of the claim.

(b) Counterclaim;

The plaintiff will implement the registration procedure for transfer of ownership on September 22, 2004 with respect to shares of 480,429/1,09 of the land listed in the attached list (1) and one fourth of the land listed in the attached list (2) with respect to the defendant accurate system.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff in the judgment is revoked. The plaintiff's counterclaim is dismissed. The defendant's accuracy system implements the registration procedure for cancellation of the registration of the establishment of a mortgage in the vicinity of the claims stated in the principal lawsuit, and the defendant's BB, KimCC, the Republic of Korea, DD surety, and saltE expressed their intention of each acceptance on the registration of cancellation of the registration of the establishment

The main lawsuit and counterclaim are also examined.

1. Basic facts

"A. On March 20, 2004, the Plaintiff purchased 1/4 shares in the land listed in the separate sheet (1) located within the land transaction permission zone under the National Land Planning and Utilization Act (hereinafter "the land No. 1") and 1/4 shares in the land listed in the separate sheet (2) attached hereto (hereinafter "the land No. 2") owned by Defendant CE and purchased OE as total 1/4 shares in the land No. 1 and 2 land (hereinafter "each land of this case"), and completed the registration of ownership transfer for the above shares in the land No. 1 and 2 land (hereinafter "each land of this case"), the Plaintiff agreed to purchase 1/4 shares in each of the above shares in the land No. 1 and 40 shares in the non-indicted No. 2 under the title of the FF Mutual Saving and Finance Company (hereinafter "FF Mutual Saving and Finance Company"), and the Plaintiff agreed to sell O2/10 shares in each of the above shares in the land of this case to the Plaintiff No. 1 and 20/1/20 of this case.1 shares in each of this case.

C. The accuracy of Defendant 2 purchased approximately KRW 30 00 per square meter on the above 2G-based land. The land of this case was purchased at KRW 30 00 per square meter, and the hot spring will be developed on the land of the above 2G-based land. In doing so, it agreed to sell KRW 1,00 out of the above 2 land to this GG-based 30 o0 o 20 o 20 o 20 o 3 o 20 o 20 o 3 o 20 o 3 o 20 o 10 o 9 o 3 o 20 o 10 o 10 o 10 o 3 o 20 o o 10 o 3 o 20 o o 20 o o 20 o o 20 o o o 3 o o o 200 o o o o 20 o o o o 202.

"fiveG et al., purchased 1,000 square meters of each of the two lands of this case due to Defendant 2's deceptions, are known to the effect that the establishment registration of mortgage was completed for 1,00 square meters of each of the lands of this case 2 purchased by them, not for 1,000 square meters. Thus, Park J would file a complaint against the Plaintiff on August 2004 due to the fraudulent act of Defendant 1, the Plaintiff would be liable to pay the remainder of its share to Defendant 1 to Defendant 2 on September 22 of the same year, including the Plaintiff's share of 1,00, and the Plaintiff's share of 1,000 won of 20, 1,000 won of 1,000 won of 30,000 won of 1,000 won of 4,000 won of 2,000 won of 1,0000 won of 2,000 won of 2,000,000

F. On October 11, 2004, the Busan District Court's Gangseo-gu registry office of the Busan District Court completed the registration of the establishment of the right to collateral security (hereinafter "registration of the creation of the right to collateral security"), which is the maximum amount of OOO in the name of the defendant accurate fraternity, as of the whole portion of the plaintiff's share in the land of this case," and the registration of provisional attachment on July 3, 2007 as to the right to collateral security of the defendant accurate village concerning the establishment of the right to collateral security (hereinafter "registration of the right to collateral security") was completed on October 15, 2007, the defendant KimCC completed the registration of provisional attachment on October 15, 2007, the provisional attachment on March 26, 2009, the seizure registration on September 8, 2009, and the seizure registration on July 7, 2010, respectively.

H. ThisG and Park II, on June 19, 2007, based on each of the above-mentioned collateral security rights on the Plaintiff’s own name, received a decision to commence voluntary auction as to the aggregate of 1,093,090 shares 66,116 shares, among the Plaintiff’s shares in the land No. 1 of this case, from the Busan District Court 2007 Mata28368 and 28351, respectively. As a result, the above 66,116/1,090 shares were sold to HelL. The Plaintiff’s shares in the land No. 1 of this case were reduced to 480,429/1,090.

I. Meanwhile, on May 28, 2013, the Defendant’s accurate system obtained land transaction permission from the Plaintiff and the Defendant’s accurate system as to each of the instant land.

[Ground of recognition] In the absence of dispute, Gap evidence 1, 3, and 5 evidence 1, 2, Gap evidence 4, 8, Gap evidence 5-3, Gap evidence 6-4, Gap evidence 15, Eul evidence 1, 2, Eul evidence 6, Eul evidence 6, Eul evidence 1, 2, Eul evidence 6, the testimony of Park JJ of the first instance court, the inquiry results of the Busan and Jinhae Free Economic Zone Authority of the court of the first instance, and the purport of the whole arguments.

【Plaintiff’s assertion that the sales contract of this case (No. 1, No. 2) of this case is forged because Defendant accurately prepared without authority. However, as long as Plaintiff’s stamp image on each of the above documents is the Plaintiff’s holder, the authenticity of the entire document is presumed, and there is no evidence to prove that Plaintiff’s assertion that Defendant accurately affixed the Plaintiff’s seal impression in his/her custody without authority, and there is no other evidence to reverse the presumption of the authenticity of each of the above documents, and thus, the Plaintiff’s assertion of forgery is groundless).

2. Determination on the claim for cancellation, etc. of the right to collateral security in the principal lawsuit

A. The plaintiff's assertion

"Around September 22, 2004, the Plaintiff: (a) by deceiving the Plaintiff that the Plaintiff requires a certificate of seal imprint and a seal imprint in order to cancel the registration of the establishment of a neighboring mortgage in the name of FF Mutual Aid and Finance Company, EG, HaH, HH II, Park JJ and Park KK; and (b) thereby completing the registration of the establishment of a neighboring mortgage by forging the Plaintiff’s application for the registration of the establishment of a new mortgage in the name of the Plaintiff necessary for the registration of the establishment of a neighboring mortgage in the instant case with the establishment of a new seal imprint and its seal imprint obtained from the Plaintiff; (c) the above registration of the establishment of a new mortgage should be cancelled as a cause invalidation; and (d) the Defendant Republic of Korea, BB, DDD guarantee, KimCC, and MaE (hereinafter referred to as the “Defendant Republic of Korea, etc.”) completed the registration of provisional attachment or seizure on the above neighboring registration of the establishment of a new mortgage."

In the event that a registration of a certain real estate has been completed, barring any special circumstance, it is presumed that the registration has been completed lawfully in the cause and procedure (see, e.g., Supreme Court Decision 2001Da72029, Feb. 5, 2002). In full view of the purport of the entire argument in Gap evidence No. 9, the Plaintiff may be found to have been issued six copies of his certificate of personal seal impression on September 22, 2004. However, it is insufficient to recognize that the above facts alone are insufficient to recognize that the Defendant’s accuracy is, as alleged in the Plaintiff, by deceiving the Plaintiff as well as using the certificate of personal seal impression and seal impression affixed, and by forging the application, etc., by forging the registration completion of the establishment of the instant neighboring real estate registration. Rather, the Plaintiff concluded a contract to establish a mortgage agreement with the Saemaul Bank without holding the Plaintiff’s seal imprint on September 23, 2004, which is the point at which the Plaintiff asserted that the Defendant kept his seal imprint on September 23, 24 and 5.

Therefore, the Plaintiff’s above assertion, which is premised on the invalidity of the cause of the establishment registration of the neighboring mortgage of this case, is without merit.

3. Determination as to a claim based on the instant sales contract and a counterclaim among the principal lawsuit

A. Summary of the parties' assertion

1) The Plaintiff asserts to the following purport and seeks confirmation of the cancellation of the instant sales contract and the return of unjust enrichment from the Defendant’s accuracy as the principal lawsuit, and seek reimbursement of damages or reimbursement from the conjunctive point of view.

① Upon entering into the instant sales contract, Defendant accurately agreed to accept and repay obligations owed to the GG, HaH, Park II, Park J, Park KK, FF Mutual Savings and Finance Company, etc., which completed the establishment registration of a neighboring mortgage on each of the Plaintiff’s respective shares of each of the instant land in lieu of payment of the purchase price.

② However, on the wind that the Defendant accurate System did not pay each of the above obligations it has accepted, the Plaintiff paid the Plaintiff the sum of the OOOOO2 to each of the OOO and EmbJ, OO2, OOO2, and the FF mutual savings and finance companies.

③ Meanwhile, since each of the instant lands is land within the land transaction permission zone, Defendant accuracy is obligated to cooperate in the application for land transaction permission on the instant land. Nevertheless, Defendant accuracy did not perform the Plaintiff’s duty of cooperation even if the Plaintiff’s demand on several occasions. On March 18, 2013, the Plaintiff was served with the content-certified mail demanding the Plaintiff to perform his/her duty of cooperation, and the Plaintiff was granted permission for the land transaction contract around May 28, 2013, but did not pay any balance OOO even thereafter.

④ Accordingly, on August 23, 2013, the Plaintiff notified Defendant accurately of the cancellation of the instant sales contract on the grounds of the Defendant’s nonperformance of the obligation to pay the remainder, and the instant sales contract was lawfully rescinded due to Defendant’s nonperformance of the obligation to pay the remainder.

⑤ Therefore, the Defendant seeks confirmation as to the cancellation of the instant sales contract, and the Defendant’s accuracy is obligated to restore to the Plaintiff the original state following the cancellation, that the Plaintiff paid to Park J, and that the Defendant provided the Plaintiff’s share out of the land No. 1 and return the total amount of unlawful gains, such as OOO won, received after the Defendant provided the Plaintiff’s share as security, to Park K, and that the said sales contract was not terminated in preliminary terms, the Defendant is obligated to pay the Plaintiff the above KRW OO that the Plaintiff paid on behalf of the Plaintiff out of the debt that the Plaintiff accepted.

2) Meanwhile, the Defendant’s accurate system seeks, as a counterclaim, to implement the registration procedure for transfer of ownership on the ground of the instant sales contract with respect to the Plaintiff’s share of 480,429 out of the land No. 1 and one fourth of the instant land No. 2.

B. Determination

1) With respect to the primary claim based on the Plaintiff’s cancellation of the instant sales contract, a contract that transfers or establishes rights, such as ownership, with respect to the land located within the land transaction permission zone shall take effect only after obtaining permission from the head of the competent Si/Gun/Gu, and shall be deemed null and void before obtaining permission. Therefore, a contract contract based on the premise that permission is granted does not take effect as to the transfer or creation of rights, such as ownership, as a legally completed juristic act until obtaining permission, but once obtaining permission, the contract becomes effective retroactively, and the contract becomes null and void at the time of non-permission. As such, a contract based on the premise that permission is granted does not take place at all until obtaining permission, and thus, the contractual contract cannot be subject to a claim for the transfer or creation of rights, and thus, a contract cannot be rescinded or claimed for damages arising therefrom on the grounds of the other party’s nonperformance of obligations under the contract before obtaining permission (see Supreme Court Decision 97Da43745, Jul. 25, 1997).

In addition, where a bilateral contract in a simultaneous performance relationship provides for the other party to perform his/her obligation, if it is necessary to perform the obligation, the other party's right to defense of simultaneous performance held by the other party solely on the fact that the former has been provided for the performance is not extinguished if the other party's performance is not provided (see, e.g., Supreme Court Decision 2001Da3764, Jul. 10, 2001). The other party's right to defense of simultaneous performance, which the other party has only been provided for the performance, is not extinguished if the other party's performance is not provided (see, e.g., Supreme Court Decision 92Da56490, Aug. 24, 1993).

(B) Determination

In light of the aforementioned legal principles, the Plaintiff and the Defendant’s accuracy are located within the land transaction permission zone under the National Land Planning and Utilization Act. The Plaintiff and the Defendant’s land transaction permission was concluded on the premise that the land transaction permission was obtained. The Plaintiff and the Defendant’s accuracy obtained land transaction permission on May 28, 2013 with respect to each of the above land. Meanwhile, according to the evidence No. 20, the Plaintiff’s accuracy, around August 23, 2013, did not pay the remainder of the Plaintiff until the considerable period of time expires even after the Plaintiff’s failure to perform the obligation to pay the remainder of the Plaintiff’s land transaction permission was resolved. Thus, even though the Plaintiff notified that “the cancellation of the sales contract of this case is cancelled,” the Plaintiff cannot be deemed to have provided the Defendant with all documents necessary for the registration of the transfer of ownership or failed to receive all the documents, and there is no reason to deem that the Plaintiff did not have any other duty to pay the remainder of the Plaintiff’s obligation to pay the remainder of the land of this case.”

Therefore, the plaintiff's confirmation of the termination of contract and the plaintiff's claim for unjust enrichment on the premise that the sales contract of this case was lawfully rescinded by notification of cancellation around August 23, 2013, which caused the defendant's failure to pay the balance of the defendant's accurate accounts, are without merit.

2) As to the defendant's counterclaim and the plaintiff's conjunctive claim

(A) As to the Defendant’s counterclaim claim

According to the above facts, the sales contract of this case became final and conclusive upon obtaining land transaction permission, and therefore, the plaintiff is obligated to perform the registration procedure for transfer of ownership under the sales contract of this case to the defendant, unless there are other special circumstances.

(B) As to the Plaintiff’s conjunctive claim

In a case where the buyer of a real estate takes over the secured obligation of the right to collateral security regarding the subject matter of sale and the buyer agrees to deduct the amount of such obligation from the purchase price, unless otherwise agreed, it shall be deemed an assumption of obligation, not an obligation to exempt the seller, and as such, in a case where a performance and takeover contract was concluded at the same time as a contract for the sale and purchase of real estate, if the seller assumes the obligation to pay the purchase price in lieu of the buyer’s obligation to pay the purchase price, and if the seller pays the buyer’s obligation to pay the purchase price in lieu of the buyer’s obligation to pay the purchase price, it is deemed that the buyer’s obligation to pay for damages or indemnity and the seller’s obligation to transfer ownership is in a performance relationship with the buyer’s obligation to pay the purchase price as a transformation of the obligation to pay the purchase price, and therefore, both are in accord with the concept of fairness and the principle of good faith (see, e.g., Supreme Court Decision 204Da

(2) On September 2, 2004, the Plaintiff: (a) concluded the instant sales contract with the Defendant 20, setting the maximum debt amount of 1/2 of the 100 and 1/4 of the 200 land; (b) as at the time of the instant sales contract, the right to collateral security was established for some of the shares of the instant land under the name of the FF Mutual Saving and Finance Company; (c) each of the instant 1 shares was completed by the Defendant 20, 200, 100, 200, 200, 2000, 2000,000,0000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

In light of the above facts in light of the legal principles as seen earlier, the Defendant’s accuracy is obligated to pay the Plaintiff the sum paid by the Plaintiff for the repayment of each collateral security obligation that the Plaintiff agreed to take over (i.e., the sum of the repayment amount to the above HaH et al. + the amount repaid to the FF mutual savings and finance companies + the amount repaid to the FF mutual savings and finance companies) as damages or indemnity, and the Defendant’s obligation to pay the amount equivalent to the above amount is related to the Plaintiff’s obligation to transfer ownership under the sales contract

(C) Sub-decisions

Therefore, at the same time, the Plaintiff is obligated to receive OOO members from the Defendant accurately, and at the same time, to perform the registration procedure for transfer of ownership based on each of the instant sales contract with respect to the shares of 480,429 out of the land No. 1 and 1/4 out of the land No. 2 of the instant case. The Defendant is obligated to pay OO members to the Plaintiff simultaneously with the fulfillment of each of the above procedures for transfer of ownership by the Plaintiff.

4. Conclusion

Therefore, the part of the plaintiff's main claim against the defendant accurate system which seeks cancellation of the right to collateral security is dismissed as it is without merit. The main claim against the plaintiff and the defendant correct system in the court of the trial is dismissed as it is without merit (the plaintiff's claim for the right to collateral security has been withdrawn due to the exchange change of the lawsuit at the court of the trial and the judgment of the court of the first instance is invalidated). The plaintiff's conjunctive claim added at the court of the trial and the defendant correct system's counterclaim are justified within the scope of each above recognition, and all of the plaintiff's conjunctive claim and the remainder of the defendant correct system's correct counter claim are dismissed as it is without merit. The plaintiff's remaining conjunctive claim and the plaintiff's remaining counter-claim against the defendant Eul, KimCC, the Republic of Korea, DDD guarantee company, and saltE are all dismissed as they are all without merit. Since the main claim and counter-claim against the plaintiff and the defendant's correct system in the judgment of the court of the first instance are partially different from this conclusion, the plaintiff's remaining part against the defendants is dismissed as above.