[1] In a case where a registered titleholder asserts grounds for registration different from the entry in the register, whether the presumption of registration is broken by the mere fact that the fact is not recognized (negative)

[2] If the registration is cancelled without any ground, the presumption of the cancelled registration

[3] Whether an agreement between the title truster and the title trustee is invalid as a false declaration of agreement between the title truster and the title trustee, which made a provisional registration with a trade-based promise in preparation for the title trustee to dispose of the title trust real estate

[4] The meaning of the registration of cancellation cancellation

[5] The meaning of a third party who has an interest in the registration for the registration for the restoration of cancellation under Article 75 of the Registration of Real Estate Act

[6] The scope of a third party with an interest in a registration that is obligated to give consent under Article 75 of the Registration of Real Estate Act in the procedure of recovery registration of a provisional registration illegally cancelled

[1] The registration of real estate is presumed to have been completed by legitimate grounds for registration from the fact that it exists formally. Although the registrant of the registration claims that he/she acquired the registration name for reasons other than those stated in the register, such assertion cannot be deemed to have broken the presumption of registration itself, even if it is not acknowledged, so even in such a case, it shall be held liable to assert and prove the grounds for invalidation on the ground that the registration was completed without a cause.

[2] If a registration is cancelled without any ground because the requirements for the validity of a real right take effect and the registration is not required to continue to exist, the validity of the real right is not affected, and the registered titleholder who was cancelled even before the completion of the registration for recovery is presumed to be a legitimate right holder, so the registration titleholder who was cancelled shall be presumed to be the legitimate right holder, and the grounds for invalidation

[3] If a title truster has made a provisional registration under his/her own name or under another person's name, other than a title truster, in preparation for an arbitrary disposal of real estate held in title trust, and the title truster and the title trustee have made a provisional registration to preserve the right to claim ownership transfer registration, the grounds for registration of such provisional registration is a trade promise. Even if such a trade promise was not made between the title truster and the title trustee, the agreement between the title truster and the title trustee

[4] The registration of cancellation is filed with the purpose of restoring the cancelled registration if all or part of a certain registration is cancelled unlawfully and thus holding the same effect as that of the first place.

[5] Article 75 of the Registration of Real Estate Act provides that where an application for restoration of cancelled registration is filed and a third party who has an interest in the registration exists, a written consent or a certified copy of the judgment that can oppose it shall be attached to the application form. Thus, a person who is likely to suffer damage by making a registration of cancellation of a third party’s disturbance with an interest in the registration mentioned in this context and who is recognized as having concerns over suffering damage by entering the existing registry in the form

[6] In a case where a provisional registration is cancelled without the intention of the person having the right to the provisional registration and the cause of cancellation is null and void, the third party having an interest in the registration is obligated to accept the procedure for recovery registration of the person having the right to the provisional registration without asking his/her good faith and bad faith, so the third party having an interest in the procedure for recovery registration of the person having the right to the provisional registration is obligated to accept the provisional registration after the provisional registration is cancelled unlawfully, and

[1] Article 261 of the Civil Procedure Act, Article 186 of the Civil Act / [2] Article 261 of the Civil Procedure Act, Article 186 of the Civil Act, Article 59 of the Registration of Real Estate Act / [3] Articles 103 and 108 of the Civil Act, Article 3 of the Registration of Real Estate Act / [4] Article 75 of the Registration of Real Estate Act / [5] Article 75 of the Registration of Real Estate

[1] Supreme Court Decision 92Da46059 Decided May 11, 1993 (Gong1993Ha, 1675), Supreme Court Decision 94Da10160 Decided September 13, 1994 (Gong1994Ha, 263), Supreme Court Decision 95Da42980 Decided February 27, 1996 (Gong1996Sang, 1102), Supreme Court Decision 97Da29793 Decided June 24, 197 (Gong1997Ha, 2278) / [2] Supreme Court Decision 81Da9297 Decided September 14, 1982 (Gong1982, 939) / [2] Supreme Court Decision 97Da297989 Decided 297, Dec. 28, 1982

[Defendant-Appellant] Plaintiff (Attorney Park Jong-dong et al., Counsel for defendant-appellant)

Defendant 1 and one other (Attorney Yoon Il-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 92Na59347 delivered on July 11, 1995

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of final appeal (the grounds of final appeal submitted after expiration of the period are to the extent of supplement) are examined.

1. As to the grounds of appeal Nos. 1 and 2

In such cases, real estate registration is presumed to have been completed by legitimate grounds for registration from the fact that it exists formally, and even if such assertion is not acknowledged, it cannot be said that the presumption of registration itself has been broken (see, e.g., Supreme Court Decisions 92Da46059, May 11, 1993; 94Da10160, Sept. 13, 1994; 95Da42980, Feb. 27, 1996). In addition, the registration is presumed to have been completed by the party owner without any grounds for invalidation, and thus, the registration is deemed to have no effect on the validity of the real right if it is revoked without any grounds for invalidation, and the registration is presumed to have been revoked by the party owner without any grounds for invalidation (see, e.g., Supreme Court Decision 95Da42980, Feb. 18, 198).

In this case, insofar as it is recognized that the provisional registration in the name of the plaintiff litigant is illegally cancelled by a forged document without being based on the will of the registered titleholder, the provisional registration is still presumed to have been made by lawful grounds for registration. Therefore, unlike the above grounds for registration, inasmuch as the ground for registration of the provisional registration is a pre-sale agreement for sale on February 9, 198, and unlike the above grounds for registration, the non-party 2, the same student of the plaintiff litigant, on his behalf, asserts that the above provisional registration is not a real estate of this case, and is not a real estate of this case, and is a real estate of this case, ( Address 1 omitted), 1,445 square meters prior to the Gyeonggi-gun ( Address 2 omitted), and 14,270 square meters prior to ( Address 3 omitted) forest and field (hereinafter the above land are combined, and the lot number is indicated only when one of the above lands is one, and the registration is entrusted to the defendant 1, and it is proved that the above provisional registration is not a real right.

In the instant case, Defendant 1 purchased the instant real estate from Nonparty 3 and completed the registration of ownership transfer under its own name. On January 1988, Defendant 1 borrowed KRW 50,00,00 from Nonparty 4 through the deceased Nonparty 4 with gambling funds, and issued to Nonparty 4 a certificate of personal seal necessary for the establishment of security right by providing the land as security for its obligation, and Nonparty 4 paid the said provisional registration under the name of the Plaintiff litigation recipient for the entire three parcels of the instant real estate, and Defendant 1 paid KRW 100,00,000 to Nonparty 4 through Nonparty 4, and the above provisional registration against the said land was not completed without any ground for rejecting the Defendants’ assertion that there was no error in the misapprehension of the legal principles as to the above provisional registration against Nonparty 1 for the purpose of guaranteeing obligations arising from illegal cause, and thus, the court below rejected the Defendants’ assertion that the above provisional registration against Nonparty 1 and the Defendants’ assertion that the above provisional registration against the said land was invalid or invalid as it did not constitute a valid defense for the Defendant 1’s defense.

Meanwhile, if the title truster has made a provisional registration for preserving the right to claim ownership transfer registration under his name or under the name of a person other than the title truster in preparation for an arbitrary disposal of real estate held in title trust, even if the title truster and the title trustee have not made such a provisional registration, the agreement between the title truster and the title trustee with the intention to make the provisional registration cannot be deemed null and void as a false declaration of agreement between the title truster and the title trustee (see, e.g., Supreme Court Decisions 89Meu1605, Aug. 27, 1991; 95Da2988, Dec. 26, 195). Therefore, as recognized additionally by the court below, if the title truster and the title trustee title the real estate in this case to Defendant 1 through Nonparty 2, or otherwise, the judgment of the court below is not affected by the agreement between the title truster and the title truster on the provisional registration and the title trustee, and thus, it cannot be deemed that the agreement between the plaintiff 1 and the title truster was not affected by the agreement between the title truster.

2. As to the third ground for appeal

Where any registration of cancellation is cancelled wholly or partially, it is registered with the intention of holding the same effect as that of the cancellation from the beginning (see, e.g., Supreme Court Decision 89Meu5673, Jun. 26, 1990). Article 75 of the Registration of Real Estate Act provides that where a third party with an interest in the cancellation registration applies for the restoration of a cancelled registration, a consent thereto or a certified copy of a judgment against it must be attached to the application. Thus, the court below’s determination that there is a concern for suffering from damage by making a cancellation registration of a third party’s column with an interest in the registration as stated in this context and that there is no concern for suffering from such damage (see, e.g., Supreme Court Decision 89Meu5673, Jun. 26, 1990). The court below’s determination that provisional registration was cancelled without intent of the person with the right to the provisional registration, and thus, is justified by the court below’s determination that the registration of cancellation becomes invalid.

3. Therefore, all appeals are 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.

Justices Jeong Jong-ho (Presiding Justice)