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(영문) 대법원 1996. 11. 8. 선고 96다26329 판결
[사해행위취소등][공1996.12.15.(24),3545]
Main Issues

Where a principal registration of transfer of ownership has been made on the basis of provisional registration, the subject of the exercise of the right of revocation and the starting point of exclusion period

Summary of Judgment

In a case where a provisional registration has been made in the name of a beneficiary for preserving a claim for transfer of ownership on real estate owned by an obligor, and the principal registration of transfer of ownership has been completed on the basis of such provisional registration, unless the juristic act which is the cause for registration of provisional registration and the juristic act which is the cause for registration of principal registration are clearly different, the legal act which is the cause for registration of principal registration shall be established, and it shall not be deemed that only the cause for registration of principal registration is the object of revocation. Thus, the limitation period of a lawsuit for revocation of a fraudulent act shall not be deemed to proceed from the date when the principal registration

[Reference Provisions]

Article 406(2) of the Civil Act

Reference Cases

Supreme Court Decision 91Da14079 delivered on November 8, 1991 (Gong1992, 73) Supreme Court Decision 92Da11008 delivered on January 26, 1993 (Gong1993Sang, 852)

Plaintiff, Appellant

Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)

Defendant, Appellee

Defendant

Judgment of the lower court

Seoul High Court Decision 95Na32305 delivered on May 17, 1996

Text

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Reasons

The grounds of appeal are examined.

In a case where a provisional registration has been made in the name of a beneficiary for preserving a claim for transfer of ownership on real estate owned by an obligor, and the principal registration of transfer of ownership has been completed on the basis of such provisional registration, a juristic act which is the cause for the provisional registration and a juristic act which is the cause for the principal registration, shall be established, unless it is clearly different from the juristic act which is the cause for the principal registration, which is the cause for the principal registration, and only the juristic act which is the cause for the principal registration is the object of revocation, shall not be considered as a fraudulent act which is the cause for the principal registration (see, e.g., Supreme Court Decisions 91Da14079, Nov. 8, 1991; 92Da11008, Jan. 26, 1993). Thus, the limitation period of a lawsuit for revocation of a fraudulent act

According to the reasoning of the judgment below, the court below held that since the pre-sale date, which is the cause for the provisional registration under the name of the defendant, was clearly recorded on April 25, 1989, and the lawsuit in this case was filed on September 8, 1994 after five years from the date of the lawsuit in this case, the part of the lawsuit in this case that seeks the cancellation of the principal registration, which is the cause for the judgment of the court below, was unlawful since it is apparent that the lawsuit in this case was filed on September 8, 1994. In this case where there is no proof that there is a clear difference between the legal act that is the cause for the provisional registration and the legal act that is the cause for the registration in this case, the court below's above determination is just in light of the legal principles as seen above, and there is no error of law by misapprehending the legal principles as to provisional registration and the principal registration,

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)

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심급 사건
-서울고등법원 1996.5.17.선고 95나32305