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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On September 24, 2012, the Defendant completed the provisional registration of the right to claim transfer of ownership (hereinafter “instant provisional registration”) under Article 61434 of the receipt on September 25, 2012, based on the purchase and sale reservation (hereinafter “instant purchase reservation”) with respect to the instant real estate owned by the Plaintiff, as to the registration of the right to claim transfer of ownership (hereinafter “instant provisional registration”).
B. The defendant and C are married couple.
[Reasons for Recognition] Evidence No. 1-1, Evidence No. 8-1, and the purport of the whole pleadings
2. The assertion and judgment
A. The plaintiff asserted that the provisional registration of this case was a provisional registration of security without paying the amount based on the purchase and sale reservation of this case. Although there is no obligation between the plaintiff and the defendant, the defendant should prepare a false purchase/sale reservation certificate and cancel it as a provisional registration of invalidity illegally completed.
B. In a case where a mortgage is created by providing real estate owned by an obligor as security for the purpose of securing the right of collateral, in principle, in light of the subsidiary nature of the right of collateral security, the claims and mortgage cannot be set differently from the subject. However, in special circumstances where an agreement was made between the obligee, the obligor, and the third party on the registration of mortgage in the name of a third party, not the creditor, and the third party, or where the third party is deemed to have been actually attributed to the relevant claim in light of transaction circumstances, not only the form at which the registration of mortgage was made by the third party, but also the third party is able to receive the claim effective from the debtor, and the debtor also can be deemed to have an indivisible relationship between the obligee and the third party, who is the nominal owner of the right of collateral security. This legal principle also applies to a case where a provisional registration is made for the purpose of collateral security.