[1] In a case where a registrar records only the currently effective registration in the new registration record pursuant to Article 33 of the Registration of Real Estate Act and closes the previous registration record, whether there is a benefit of legal action to seek the implementation of the procedure for registration of cancellation in itself (negative) / In a case where it is necessary to complete registration of cancellation in order to realize rights of a real right holder, whether a lawsuit is permissible to seek the implementation of the procedure for registration of cancellation against the “transfer registration recorded in the current registration record” as necessary to restore the registration of a real right holder (affirmative in principle), and whether this legal principle likewise applies to the registration of land which remains in the registration record of land before division, but is not transferred to the registration record of land which uses the new registration record after subdivision (affirmative)

[2] Whether there is a benefit in action to seek cancellation of the registration to the intermediate registrant, regardless of whether the last registrant is entitled to seek cancellation of the registration with respect to the registration of transfer of ownership completed in succession (affirmative)

[3] Whether a person, who is not a sectional owner, has a right to the land which was owned as a site of an aggregate building regardless of the ownership of a section of exclusive ownership before the construction of an aggregate building, is subject to the prohibition of separate disposal as stipulated under Article 20 of the Act on Ownership and Management of Condominium Buildings

[4] In a case where a person holding a divided ownership of an aggregate building does not hold a right to use a site or the right to use a site expires, whether the exclusive ownership and the right to use a site under Article 20 of the Act on the Ownership and Management of Aggregate Buildings apply to the combined treatment (negative in principle)

[1] Where a registrar transfers only the currently effective registration among the matters registered in the registration record pursuant to Article 33 of the Registration of Real Estate Act to a new registration record and closes the previous registration record, the registration that remains in the closed registration record without being recorded in the new registration record (hereinafter “closed registration”) shall not be effective as the current registration, and a new registration record shall not be recorded in the closed registration record. Therefore, there is no benefit in filing a lawsuit seeking the implementation of the procedure for registration of cancellation against the closed registration itself.

However, Article 33 of the Registration of Real Estate Act provides that only the currently effective registration among the matters entered in the registration record may be transferred to a new registration record, taking into account the convenience of the registration practice, and thus, it shall not make it difficult for a genuine right holder to remedy his/her rights. As such, as the case where a real right holder’s registration and a registration transferred without any reason remain to a new registration record by closing the previous registration record after transferring only the registration that appears to be effective when the registration was transferred successively without any reason to a new registration record, the benefits of a lawsuit seeking the implementation of the registration procedure cannot be uniformly denied on the ground that the registration remains to a new registration record if it is necessary to complete the registration to realize the rights of a real right holder, even though the registration was not transferred to a new registration record.

In addition to a closed registration itself, a lawsuit seeking the implementation of the procedure for the registration of cancellation should be permitted unless there are special circumstances to the effect that it is necessary to restore the registration of a person having real rights transferred without any reason. In this case, where a judgment ordering the implementation of the procedure for the registration of cancellation becomes final and conclusive and where registration that is incompatible with the registration of a person having real rights among the registrations already recorded in the current registration record is cancelled, the registrar ex officio shall record the above registration subject to the request for cancellation in the judgment ordering the implementation of the procedure for the registration of cancellation in the current registration record, and then, enter the above registration in the current registration record in the judgment ordering the implementation of the procedure for the registration of cancellation in his/her own discretion, and then may derive the above conclusion by analogying Article 32(2) of the Registration of Real Estate Act. The above provision provides that “Where a registrar discovers that the error or omission of registration is caused by the mistake of an institution, etc., he/she shall correct it ex officio without delay.” However, in relation to the closed registration, the relevant registration officer may have transferred the right to the registration.

This legal doctrine remains in the registration record of land before subdivision in the course of subdivision of land, but it also applies to the registration record of land where a new registration record is used after subdivision, which has not been transferred.

[2] Since a lawsuit claiming the implementation of each procedure for cancellation of ownership transfer registration in succession is common co-litigations, one of the parties can seek cancellation against any one of them, and regardless of whether the final registrant can seek cancellation of the registration, there is a benefit in the lawsuit seeking cancellation of the registration against the intermediate registrant.

[3] The right to use a site, which is prohibited from a separate disposition pursuant to Article 20 of the Act on the Ownership and Management of Aggregate Buildings, is a right that a sectional owner has against a building site for the purpose of owning a section of exclusive ownership. Thus, a person who is not a sectional owner has prior to the construction of an aggregate building with respect to a land which becomes a site of an aggregate building regardless of the ownership of a section of exclusive ownership, not a restriction on the prohibition

[4] In a case where a person holding a divided ownership of an aggregate building does not hold a right to use a site from the beginning to the beginning or the right to use a site is extinguished as a result of termination of a contract which caused the possession of a right to use a site, there is no room to apply the integrated treatment of the section for exclusive use and the right to use a site, barring special circumstances.

[1] Article 248 of the Civil Procedure Act / [Institution of Lawsuit], Articles 32 and 33 of the Registration of Real Estate Act / [2] Article 186 of the Civil Act, Article 248 of the Civil Procedure Act / [3] Article 20 of the Act on the Ownership and Management of Aggregate Buildings / [4] Article 20 (1), (2), and (4) of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 201Da41239 Decided January 28, 2016 (Gong2016Sang, 323) / [2] Supreme Court Decision 98Da23393 Decided September 22, 1998 (Gong1998Ha, 2561) / [3] Supreme Court Decision 2010Da6017 Decided May 27, 2010 (Gong2010Ha, 1265), Supreme Court Decision 201Da12149, 12156 (Gong2013Ha, 2105) / [4] Supreme Court Decision 201Da23125 Decided September 8, 2011

Plaintiff (Law Firm Han River, Attorneys Kim Jong-dae et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Law Firm LLC, Attorneys Jeong Hong-sik et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2015Na295 decided October 7, 2015

The part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to Suwon District Court. The appeal by Defendant Gangseo-gu C&C and Defendant 3 is dismissed. Of the costs of appeal, the part arising between the Plaintiff, Defendant Gangseo-gu C&C and Defendant 3 is assessed against Defendant Gangseo-gu C&C and Defendant 3.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a registrar transfers only the currently effective registration among the matters registered in the registration record pursuant to Article 33 of the Registration of Real Estate Act to a new registration record and closes the previous registration record, the registration that remains in the closed registration record without being recorded in the new registration record (hereinafter “closed registration”) shall not be effective as the current registration, and the closed registration record shall not be recorded in the new registration record. Therefore, there is no benefit in filing a lawsuit seeking the implementation of the procedure for registration of cancellation against the closed registration itself.

However, Article 33 of the Registration of Real Estate Act provides that only the currently effective registration among the matters entered in the registration record may be transferred to a new registration record, taking into account the convenience of the registration practice, and thus, it shall not make it difficult for a genuine right holder to remedy his/her rights. As such, as the case where a real right holder’s registration and a registration transferred without any reason remain to a new registration record by closing the previous registration record after transferring only the registration that appears to be effective when the registration was transferred successively without any reason to a new registration record, the benefits of a lawsuit seeking the implementation of the registration procedure cannot be uniformly denied on the ground that the registration remains to a new registration record if it is necessary to complete the registration to realize the rights of a real right holder, even though the registration was not transferred to a new registration record.

In addition to a closed registration itself, a lawsuit seeking the implementation of the procedure for the registration of cancellation should be permitted unless there are special circumstances to the effect that it is necessary to restore the registration of a person having real rights transferred without any reason. In this case, where a judgment ordering the implementation of the procedure for the registration of cancellation becomes final and conclusive and where registration that is incompatible with the registration of a person having real rights among the registrations already recorded in the current registration record is cancelled, the registrar ex officio shall record the above registration subject to the request for cancellation in the judgment ordering the implementation of the procedure for the registration of cancellation in the current registration record, and then, enter the above registration in the current registration record in the judgment ordering the implementation of the procedure for the registration of cancellation in his/her own discretion, and then may derive the above conclusion by analogying Article 32(2) of the Registration of Real Estate Act. The above provision provides that “Where a registrar discovers that the error or omission of registration is caused by the mistake of an institution, etc., he/she shall correct it ex officio without delay.” However, in relation to the closed registration, the relevant registration officer may have transferred the right to the registration.

This legal doctrine remains in the registration record of land before subdivision in the course of subdivision of land, but it is likewise applied to the registration record of land where a new registration record is used after subdivision (see Supreme Court Decision 2011Da41239, Jan. 28, 2016).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. The land indicated in paragraph (1) of the attached list of the judgment of the court below (hereinafter “instant land”) shall be purchased on June 6, 1962 by the Plaintiff and completed the registration of ownership transfer on June 26, 1962.

B. As to the land of this case 1 in the name of Defendant 1, Suwon District Court, Sung-nam Branch of Seoul District Court (Seoul District Court), the ownership transfer registration based on sale on August 11, 2001 (hereinafter “instant ownership transfer registration”) was made on July 30, 2001, but it was made without permission by the Plaintiff, who is the owner of the instant land.

C. Defendant Gangnam-gu C&C Co., Ltd. (hereinafter “Defendant Gangnam-gu C&C”) completed the registration of ownership transfer on March 17, 2010 as to the share of 145/496 out of the instant land, which was received on March 17, 2010 by the same registry office, and Defendant 3 completed the registration of ownership transfer on March 10, 2010 as to the remaining share of 351/496 out of the instant land as of March 17, 2010 by the same registry office, which was received on March 17, 2010.

D. On April 6, 2010, the instant land was divided into a river of 145 square meters (where the land category is changed to a site on May 12, 201), a river of 342 square meters (where the land category is changed to a site on May 12, 201), (where the land category is changed to a site on November 24, 2010), and (where address 3 omitted), a river of 9 square meters (where the land category is changed to a site on October 14, 201).

E. Defendant 3 completed the registration of ownership transfer as to the shares of 351/496 shares out of the ( Address 1 omitted) land that was divided as above on April 9, 2010 by Suwon District Court, Sungwon-nam Branch of Gwangju District Court, Sungwon-nam Branch of 17889, which was received on April 9, 2010. Defendant Kuwon-won C&C completed the registration of ownership transfer as to the shares of 145/496 shares out of ( Address 2 omitted) land and ( Address 3 omitted) land and ( Address 3 omitted) land, respectively by the same registry office.

F. On May 6, 201, the land ( Address 1 omitted) which was divided as above was combined with the land on May 6, 201 ( Address 4 omitted) and became the land listed in paragraph (2) of the attached Table of the original judgment (hereinafter “instant 2 land”). On November 22, 2010, the land ( Address 2 omitted) was combined with the land listed in paragraph (3) of the same Table (hereinafter “instant 3 land”). The land ( Address 3 omitted) was combined with the land on October 13, 2011 and became the land listed in paragraph (4) of the same Table (hereinafter “instant 4”).

G. Following the above procedure, Defendant Kangwon C&C completed each registration of ownership transfer as to the whole land of this case 2, and Defendant 3 completed each registration of ownership transfer as to the whole land of this case 3 and 4. Since then, the land of this case 2 was registered that 103 buildings, an aggregate building, ○○○○○○○○○ (hereinafter “instant aggregate building”) were an aggregate building, and 104 buildings on the land of this case 3 and 105 buildings on the land of this case 4 were newly constructed on the land of this case 2, 3, and 4 on the land of this case.

3. Determination on the legitimacy of the lawsuit against Defendant 1

According to the records, the Plaintiff filed a lawsuit against Defendant 1 seeking the implementation of the procedure for the registration of cancellation of ownership transfer of this case, which remains in the registration record of the instant land, which is the land before subdivision. In light of the aforementioned legal principles, the Plaintiff’s claim against Defendant 1 for the implementation of the procedure for the registration of cancellation concerning the registration of cancellation of ownership transfer of this case, which was recorded in the registration record of the instant land that is the land before subdivision. In addition, the Plaintiff’s claim against Defendant 1 for the implementation of the procedure for the registration of cancellation concerning the registration of cancellation of Defendant 1, which was recorded as to the land transferred to Defendant 2, 3, and 4, and the Plaintiff’s claim for the performance of the procedure for the registration of cancellation as the subject of the registration of closure itself, is unlawful as there is no benefit of lawsuit. Nevertheless, the lower

4. Determination on the grounds of appeal by Defendant Kangwon C&C and Defendant 3

A. Ground of appeal No.1

Of the Plaintiff’s instant lawsuit, the part concerning the claim for cancellation registration against Defendant Kangwon L&C and Defendant 3 does not simply seek cancellation of the contents of the closed register, but also seek the cancellation of the registration of Defendant Kangwon L&C’s name entered in the registration record of land 2, 3, and 4 and each transfer of ownership in Defendant 3’s name. Accordingly, this part of the Defendants’ allegation in the grounds of appeal is rejected.

B. Ground of appeal No. 2

As a lawsuit claiming the implementation of each procedure for cancellation of ownership transfer registration completed in succession is common co-litigations, one of them is entitled to seek cancellation against any one of them, and regardless of whether it is possible for the last registrant to seek cancellation of the registration (see Supreme Court Decision 98Da23393, Sept. 22, 1998, etc.). Accordingly, the Plaintiff asserting that the ownership transfer registration of this case completed in Defendant 1’s name is null and void, has the benefit of seeking cancellation of the Defendant Gangwon-do C&C name and each ownership transfer registration in the order of Defendant 3. The lower court did not err by misapprehending the legal doctrine on the qualification of the Defendant.

C. Ground of appeal No. 3

The right to use a site, which is prohibited from a separate disposition pursuant to Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) is a right that a sectional owner has against a building site for the purpose of owning a section for exclusive use. As such, the right that a person who was not a sectional owner prior to the construction of an aggregate building owns as a site of an aggregate building regardless of the ownership of a section for exclusive use, does not be subject to the prohibition of separate disposition as stipulated under Article 20 of the Act on the Ownership and Management of Aggregate Buildings (see Supreme Court Decisions 2010Da6017, May 27, 2010; 201Da12149, 12156, Oct. 24, 2013).

The lower court determined that the Plaintiff had ownership of the instant land even before the construction of the instant condominium regardless of the ownership of the exclusive ownership, and thus did not be subject to restrictions on the prohibition of separate disposal as stipulated in Article 20 of the Aggregate Buildings Act. The lower court’s determination is justifiable as it is in accordance with the aforementioned legal doctrine, and did not err by misapprehending

D. Ground of appeal No. 4

The above Defendants asserted that since a sectional owner of the instant aggregate building has lawfully acquired the ownership of the instant exclusive ownership in accordance with Article 20 of the Aggregate Buildings Act, the Plaintiff automatically acquired the ownership of the instant land 2, 3, and 4 that are subordinate to it pursuant to Article 20 of the Aggregate Buildings Act, and the Plaintiff’s ownership was extinguished, the Plaintiff cannot seek the cancellation of each ownership transfer registration in the name of the Defendants as to the instant land 2, 3, and 4.

However, barring any special circumstance, in a case where a sectional owner of an aggregate building does not hold a right to use a site from the beginning to the beginning or the right to use a site is extinguished due to the termination of a contract that caused the ownership of a right to use a site, there is no room to apply the integrated treatment of the section for exclusive use and the right to use a site as prescribed by Article 20 of the Aggregate Buildings Act (see Supreme Court Decision 2011Da23125, Sept. 8, 201). Therefore, the aforementioned Defendants’ allegation in

5. Conclusion

The part of the judgment of the court below against Defendant 1 is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendant Gangseo-gu C&C and Defendant 3 is dismissed as it is without merit, 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.

Justices Kim Chang-suk (Presiding Justice)