Hayang support-2015-Ga group-9096 ( December 17, 2015)

If a sales contract is concluded, the right to complete the purchase and sale cannot be deemed extinguished by the expiration of the exclusion period.

Since a sales contract for land is deemed to have been concluded, the argument that the right to complete the purchase and sale is extinguished by the limit of the exclusion period is without merit.

2016Na51973 Cancellation of provisional registration

Korea

AA

Suwon District Court Decision 2015Kadan9096 Decided December 17, 2015

2016.08.19

2016.09.02

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's right to claim transfer of ownership, completed on April 17, 2002 by the O district court's O branch's O branch's O branch's O branch's O branch's O branch's registry office with respect to the plaintiff's land prior to OO branch's O branch's O branch's O branch's O branch's O branch's (hereinafter "the land in this case"), will implement the procedure for registration cancellation.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. BB completed the registration of ownership transfer on March 7, 1989 by the receipt OOOOO of the instant land under the OOOO of the O district court.

B. On April 17, 2002, BB entered into a pre-sale agreement with the Defendant to purchase and sell the instant land as OOO on the same day, and on the same day, the provisional registration on April 17, 2002 of the receipt OOO title transfer claim preservation (hereinafter referred to as the "provisional registration of this case") was completed on April 17, 2002 by the same registry office based on the pre-sale agreement with the Defendant on the said land (hereinafter referred to as the "instant pre-sale agreement").

C. After that, BB died, and CCC completed the registration of ownership transfer, which is the receipt OO, on January 4, 2007, due to inheritance by consultation and division with respect to the instant land.

D. The Plaintiff is identical to the instant land in order to preserve the claim against CCC, including corporate tax.

On March 11, 2013, the registry office completed the registration of provisional seizure by the receiptOO.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 4, the purport of the whole pleadings

2. Judgment on the legitimacy of subsequent appeal

A. The plaintiff's assertion

The plaintiff filed a provisional disposition with respect to the provisional registration of this case prior to the pronouncement of the judgment of the court of first instance. The defendant filed an application for perusal and duplication in the above provisional disposition case. 2) After that, the defendant filed an objection with respect to the above provisional disposition, and 3) Meanwhile, the defendant filed a lawsuit against CCC for the execution of the principal registration based on the provisional registration of this case prior to the above provisional disposition application, and on the other hand, asserts that the subsequent appeal of this case is unlawful on the following two grounds.

A) In light of the above circumstances, the Defendant, around November 2015, knew of the fact that the instant lawsuit was filed.

Therefore, the imposition of the appeal period against the judgment of the first instance court of this case rendered on December 17, 2015 constitutes negligence, which is the reason for the defendant to be responsible.

B) Even if the Defendant was aware of the fact that the judgment of the first instance court was rendered after the lapse of the appeal period, the Defendant filed an appeal following the subsequent completion of March 18, 2015, which was the date of filing the objection against the said provisional disposition, even though he had known that the said judgment was rendered before January 15, 2016, which was the date of filing the objection against the said provisional disposition.

(b) Fact of recognition;

According to Gap evidence Nos. 5, 6 and Eul evidence Nos. 1 (including the number of each branch number), the court of first instance rendered a judgment on December 17, 2015 after the duplicate of the complaint of this case was served by public notice to the defendant. The original copy of the judgment was served on the defendant by public notice on December 19, 2015. 2) The plaintiff filed an application for provisional disposition prohibiting the disposal of the rights on the provisional registration of this case with OOOO branch office OOOO branch office on October 26, 2015. On October 28, 2015, the defendant may file an application for provisional disposition No. 1050 on October 26, 2015, and the defendant filed an application for perusal and duplication of the above case with the above court on November 26, 2015, the defendant received a provisional disposition No. 2010 on October 15, 2016, which became final and conclusive by O No. 2015O.20 on the ground of this case.

(c) Relevant legal principles;

Unless there exist special circumstances, if a copy, original copy, etc. of a complaint were served by service by public notice, the defendant was unaware of the service of the judgment without negligence, and in such a case, the defendant was unable to comply with the peremptory period due to a cause not attributable to him/her and the defendant is entitled to file a subsequent appeal within two weeks from the date on which such cause ceases to exist. The "date on which such cause ceases to exist" refers to the time when the party or legal representative becomes aware of the fact that the judgment was served by public notice, rather than when the party or legal representative becomes aware of the fact that the judgment was served by public notice (see, e.g., Supreme Court Decision 2010Da7504, 75051, Jan. 10,

D. Determination

In light of the legal principles as seen earlier, since the above facts were served by public notice from the duplicate of the complaint to the lawsuit in this case, it is reasonable to view that the defendant was unaware of the service of the judgment of the first instance without fault, barring any special circumstance. 2) The provisional disposition prohibition case on provisional registration is a separate case proceeding different from the lawsuit in this case, and thus, the defendant applied for perusal and duplication of the records of this case or filed an objection against the provisional disposition order. Thus, it cannot be inferred that the defendant knew of the delivery by public notice of the judgment of the first instance. 3) Since the claim for performance of the provisional registration procedure based on provisional registration is a separate case from the lawsuit in this case, the defendant was rendered a favorable judgment by public notice, barring any special circumstance, and the defendant cannot be seen as having known of the fact that the provisional registration of this case was served by public notice before the provisional registration of this case was served by public notice of this case.

E. Sub-committee

Therefore, the subsequent appeal of this case is lawful.

3. Determination as to the cause of action

A. The plaintiff's assertion

From April 17, 2002, which was the date of reservation, the right to complete the instant provisional registration was extinguished by the Do of the exclusion period as well as the ten years after April 17, 2002. Therefore, the Defendant, who seeks the cancellation of the instant provisional registration in subrogation of the CCC, as a tax claimant of the CCC, is obliged to implement the procedures for the cancellation registration of the instant provisional registration

(b) Relevant legal principles;

In other words, the right to complete the pre-sale is a kind of right to make the other party express his/her intention of the completion of the pre-sale contract and to conclude the pre-sale contract and to exercise the right within a certain period of time if the parties agree to exercise it, and within ten years from the time when the pre-sale is made, if no such agreement is made, and the right to complete the pre-sale shall expire upon the lapse of the period of exclusion.

C. In the instant case:

According to the above facts, the contract of this case, which is the cause of the provisional registration of this case, was concluded on April 17, 2002, and the ten years have passed thereafter, is apparent. However, considering the overall purport of the statements and arguments in the evidence Nos. 2 through 4 of this case, the defendant visited BB on several occasions prior to the death of BB, the other party to the contract of this case, and requested BB to implement the principal registration procedure based on the provisional registration of this case. Accordingly, CCC, which is the son of BB, requested on November 10, 2005, to perform the provisional registration procedure based on the provisional registration of this case. Since the contract of this case was concluded on November 10, 200, it can be acknowledged that the defendant prepared a letter of promise to implement the provisional registration of this case after BB died to the defendant, and that the defendant exercised the right to complete the purchase and sale of this case against CB on the date of the above provisional registration of this case, the plaintiff's assertion that the contract of this case had been concluded between B and 15.15.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be revoked as it is unfair, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.