Seoul High Court Decision 2013Na2014024 Decided November 21, 2013

Declaration of Consent to Cancellation

Whether there is an opposing power in the Republic of Korea as a nullification of a trade reservation

2014Da200619 Declaration of Consent

The AA

Korea

September 10, 2015

September 10, 2015

All appeals are dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. The expression of false declaration in collusion with the other party is null and void, but with respect to a third party in good faith who has a new legal interest based on the legal relationship formed externally by a false indication as a person other than the party or universal successor of a false indication, no one may oppose the invalidation of such false indication as well as the third party. As such, with respect to a third party in good faith, the false indication is also effective as indicated therein (see, e.g., Supreme Court Decision 94Da12074, Apr. 26, 1996). In addition, after the seizure and provisional seizure of claims, the act of extinguishing or reducing claims cannot be asserted against the creditor. Thus, even if the debtor and the third party debtor cancel the legal relationship, which is the cause of the claims after the seizure and provisional seizure, if there are special circumstances, such as the cancellation of the agreement without any reasonable grounds, the third party debtor cannot oppose the seizure and provisional seizure on the ground that the claims subject to seizure were extinguished by the cancellation of the agreement (see, e.g., Supreme Court Decision 98Da1797, Jun. 17, 197).

2. On January 11, 2008, the lower court: (a) concluded the instant promise to sell and purchase the instant real estate with the KimCC on January 11, 2008 in order to oppose preservative measures, such as prohibition of disposal of real estate against the instant real estate by the Odong B Housing Reconstruction Cooperatives (hereinafter referred to as the “OCC”); (b) completed the registration of the right to claim ownership transfer on the ground of the instant promise to sell and purchase the instant real estate to the KimCC on February 11, 2008; (c) on April 14, 2011, the Defendant seized the right to claim ownership transfer registration in accordance with the instant promise on the ground that the KimCC did not pay national taxes; and (d) on April 15, 2011, on April 15, 2011, the additional registration of seizure of the right to claim ownership transfer registration was made; and (c) the Plaintiff agreed to cancel the instant sales contract between KimCC and the Plaintiff on August 29, 2012.

(2) After finding the facts as stated in its reasoning, it was acknowledged that the instant trade reservation was concluded most recently in order to oppose the provisional disposition of the OO association, and thus constitutes a false conspiracy and thus null and void, but the Defendant who seized the right to claim ownership transfer based on the instant trade reservation is presumed in good faith to be a third party having a new interest based on the instant sales contract, and the cancellation of the agreement asserted by the Plaintiff is a withdrawal of the false conspiracy and thus cannot be asserted against the Defendant who had a prior interest.

3. Examining the reasoning of the judgment of the court below along with the evidence duly admitted, the above conclusion of the court below is acceptable in light of the legal principles as seen earlier. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to Article 108

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.