Suwon District Court Ansan Branch 2014Gadan1187 ( January 14, 2015)

A provisional registration made for a section of exclusive ownership of a building shall remain effective until the site ownership.

A provisional registration made for a section of exclusive ownership of a building prior to the completion of a site ownership registration shall remain effective until the site ownership is made in accordance with the legal principles of the principal and accessory.

2015Na6514 Implementation, etc. of procedures for registering site ownership indication

○ Kim

Korea

National Rotations

August 13, 2015

September 10, 2015

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2.

A. Defendant ○○○-si implements each procedure for cancellation of registration of seizure completed under No. 47710 on June 7, 2001 with respect to the shares of 23.95/1627.2 out of each of the real estate listed in the separate sheet No. 1. 23.95/1627 among the real estate listed in the separate sheet No. 1.

B. Defendant Republic of Korea shall implement the registration procedure for cancellation of each registration of seizure completed under No. 94802, Oct. 24, 2001, which was completed as of October 24, 2001, with respect to the shares of 23.95/1627.2 out of each real estate listed in the list No. 1.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Facts of recognition;

A. On December 4, 2000, ○○ Construction Co-Defendant in the first instance trial (hereinafter referred to as “○○ Construction”) was a co-defendant in the first instance trial.

[1. The registration of ownership preservation was completed without completing the registration of shares in the site as to each section of exclusive ownership of an aggregate building (including the real estate listed in attached Table 2. List hereinafter referred to as "the commercial building in this case") newly constructed on the ground of each real estate listed in the list (hereinafter referred to as "each land in this case").

B. On February 8, 2001, ○ Construction made a promise on February 7, 2001 to sell and purchase the instant commercial buildings to the Plaintiff.

The provisional registration of the right to claim ownership transfer (hereinafter referred to as the "provisional registration of this case") was completed on the ground of the reason.

Until the time, the share of the site in the commercial building of this case (23.95/1627.2 shares in each of the land of this case)

The registration has not been made.

C. Defendant ○○ City completed registration of ownership preservation on January 3, 2001 with respect to each of the land of this case.

On February 22, 2001, the registration of ownership transfer was completed on ○○ Construction.

D. Of each of the instant lands in the name of ○○ Construction, 23.95/1627.2 shares, Defendant ○○ City

On June 7, 2001, the registration of seizure as stated in Section 2-A of the Disposition, and the defendant Republic of Korea completed the seizure registration as stated in Section 2-B of the Disposition No. 2 of October 24, 2001.

E. The Plaintiff completed the registration of ownership transfer with respect to the instant commercial building on May 2, 2002.

F. On the other hand, the commercial buildings of this case among the sections for exclusive use listed in the above paragraph (a) are excluded.

all registration for the shares of the site has been made.

[Ground of recognition] The descriptions and arguments of Gap evidence 1 to 4 (including paper numbers), Eul evidence 1 and 2

The purport of the whole

2. Determination

A. Scope of validity of provisional registration of this case

① Legal principles as to the relationship between an accessory and the principal thing under Article 100(2) of the Civil Act shall be as to the relationship between the accessory and the principal thing

In addition, both rights are applied, and dispositions under the above provision shall be made by the disposal of the rights by the disposal.

In addition, where the legal relationship of the main thing arises due to the disposition, etc. under public law such as seizure;

(2) Article 358 of the Civil Code provides that a mortgage shall also be effective against the accessory.

The main provision is to make a theoretical basis with Article 100 (2) of the same Act, and Article 100 (3) of the Act.

Pursuant to Article 20 (1) and (2) of the Act on the Protection and Management of Oils, the right to use the site of a sectioned building shall be transferred.

In light of the fact that the part and the accessory subdivision are recognized, the section for exclusive use of a sectioned building is recognized.

section for exclusive use before the registration of ownership preservation has been made and the registration of shares in the site has been made;

effect of the provisional attachment decision issued on the right to use site shall be

Unless there are special circumstances, such as the determination of the site, up to the site ownership, which is a accessory or accessory right.

The above legal principle also applies to provisional registration of the right to use site of this case, which was issued only to a section of exclusive ownership prior to the completion of registration of preservation of ownership of the section of exclusive ownership and the completion of registration of shares in the site. However, there is no evidence to acknowledge any special circumstance, such as that the right to use site of this case is prescribed by the rules to enable a separate disposition of the right to use site of this case. Therefore, the provisional registration of this case extends not only to the section of exclusive ownership of this case, but also to the portion of the site of this case, which remains in the name of ○○ Construction among each land of this case.

B. Validity of each registration of seizure under the name of the Defendants

In a case where a provisional registration of preservation of ownership transfer claim has been made prior to the registration of seizure on a taxpayer's property as part of the disposition on default and the principal registration has been made thereafter, the registration of seizure made thereafter shall lose its validity if the provisional registration is a provisional registration of priority preservation based on the purchase and sale reservation (see Supreme Court Decision 95Nu15193, Dec. 20, 196). In light of the above legal principles, the provisional registration of priority preservation based on the purchase and sale reservation made in the Plaintiff's name was completed on February 8, 2001 with respect to the commercial building of this case on June 7, 2001; the provisional registration of priority preservation based on the purchase and sale reservation made in the Plaintiff's name was completed on June 24, 201; and the registration of seizure made in the name of Defendant ○○ City on October 24, 201 after the provisional registration became void as seen above.

C. Sub-decision

Therefore, the Defendants are obligated to implement the registration procedure for cancellation of each registration of seizure completed with respect to each of the instant land’s shares 23.95/1627.2.

3. Conclusion

Thus, the plaintiff's claim against the defendants is justified, and all of them are accepted.

The part of the judgment of the first instance court, which had different conclusions, against the Defendants is unfair, and thus revoked, and the Defendant’s revocation.

It is decided as per Disposition by ordering each cancellation registration procedure to be implemented.