In a case where a juristic act, which served as the ground for registration of cancellation, has been cancelled as an expression of intent by fraud, whether the cancelled registration constitutes an unlawful cancellation registration subject to registration of cancellation (affirmative)

Article 59 of the Registration of Real Estate Act

Supreme Court Decision 89Meu5673 delivered on June 26, 1990 (Gong1990, 1557) Supreme Court Decision 92Da39877 delivered on March 9, 1993 (Gong1993Sang, 1150) Supreme Court Decision 2000Da63974 Delivered on February 23, 2001 (Gong2001Sang, 756)

Plaintiff (Law Firm Shin & Lee, Attorneys Song Jong-soo, Counsel for the plaintiff-appellant)

1. A person who is not a party to a contract shall be liable to compensate for the losses incurred by the party to the contract.

Chuncheon District Court Decision 2011Na5176 decided October 26, 2012

The part of the judgment of the court below against Defendant Hacheon-gun is reversed, and that part of the case is remanded to Chuncheon District Court Panel Division. The Plaintiff’s appeal against Defendant Hacheon-gun is dismissed. The costs of appeal against Defendant Hacheon-gun are assessed against the Plaintiff. Of the costs of appeal, the part of the appeal against the Defendant Hacheon-gun

1. As to the appeal against the Defendant Haba Global Leisure Association

The court below rejected the plaintiff's lawsuit against the defendant company on the ground that the claim for cancellation of provisional registration against the defendant company, who is not the owner at the time of cancellation of provisional registration, is unlawful, after the provisional registration was completed and the provisional registration was cancelled after the completion of ownership transfer registration in the third party purchaser's future, the person liable for recovery registration in the procedure for recovery registration of provisional registration cancelled is the third party purchaser at the time of cancellation of provisional registration, and the third party purchaser is eligible for the claim for cancellation of provisional registration only. Thus, the court below rejected the plaintiff's lawsuit on the real estate in this case owned by the defendant Hak-gun, Inc., Ltd. (hereinafter "the defendant company"), after the provisional registration was completed, the ownership transfer registration was completed in the name of the plaintiff, and then the above provisional registration was cancelled. The plaintiff did not submit the grounds for appeal and further did not err in the judgment below

2. As to the appeal against the defendant Jong-gun

We examine the grounds of appeal.

A. The registration of cancellation under Article 59 of the Registration of Real Estate Act refers to a registration which has the same effect as that which had not been retroactively cancelled at the time of cancellation due to the restoration of the cancelled registration where any registration is cancelled illegally, and the registration which was cancelled unlawfully includes the substantive reasons such as invalidation or cancellation of the grounds for registration of cancellation (see, e.g., Supreme Court Decisions 89Meu5673, Jun. 26, 1990; 92Da39877, Mar. 9, 1993). Thus, even if a juristic act constituting the grounds for registration of cancellation was cancelled as an expression of intent by fraud, it constitutes an unlawful registration that is subject to registration of cancellation.

B. (1) According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that the provisional registration of this case was cancelled due to July 6, 2007 cancellation on the ground that the provisional registration of this case was cancelled due to the cancellation of provisional registration on July 6, 2007 by delivering documents to the Defendant Company, which belongs to the Defendant Company’s deception that the Plaintiff would create and distribute a business site upon cancellation of the provisional registration of this case, i.e., if the Plaintiff would have cancelled the provisional registration of this case.

In other words, according to the facts found in the decision of the court below, the plaintiff had the intent to cancel the provisional registration of this case in order to obtain the designation of a project site from the defendant company, and the provisional registration of this case was cancelled based on its intention. Although the defendant company's cancellation of the provisional registration of this case was made in order to cancel the provisional registration of this case without notifying it despite the fact that the development project for the project for the area of the project site could not be smoothly carried out, the cancellation registration of provisional registration of this case was voluntarily carried out according to the plaintiff's own will,

(2) However, according to the reasoning of the lower judgment and the record, the Plaintiff’s issuance of documents to the Defendant Company for cancellation of provisional registration to the reasons indicated in its reasoning, and the provisional registration of this case was cancelled on July 6, 2007 by joint application of the Plaintiff and the Defendant Company. In light of the legal principles as seen earlier, if the provisional registration cancellation agreement of the Plaintiff and the Defendant Company on July 6, 2007 was lawfully cancelled on the ground of the Defendant Company’s expression of intent by fraud, the registration of cancellation of provisional registration of this case shall be deemed to constitute an unlawful cancellation registration that becomes void and is subject to cancellation registration.

Meanwhile, Defendant Jong-gun did not belong to the other party to the agreement on cancellation of provisional registration between the Plaintiff and the Defendant, which is not a party to the agreement on cancellation of provisional registration between the Plaintiff and the Defendant, and thus, did not constitute a third party to the agreement on cancellation of provisional registration of this case. At the time of registration cancellation of provisional registration of this case, only the owner of the real estate of this case is the owner of the real estate at the time of registration cancellation of provisional registration of this case, and it does not constitute a third party under Article 110(3) of the Civil Act, since it

Nevertheless, the court below rejected the plaintiff's claim against the defendant Jong-gun without clearly determining whether the grounds for registration of cancellation of the provisional registration of this case constitutes an expression of intent by the defendant company's fraud, on the ground that even if the plaintiff cancelled the provisional registration of this case by deception of the defendant company, the registration of cancellation of the provisional registration of this case cannot be permitted. Thus, the court below erred in the misapprehension of the legal principles on the registration of cancellation of the provisional registration of this case

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant Jong-gun is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal against the defendant company is dismissed, and the costs of appeal against the defendant company are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)