Seoul Guarantee Insurance Co., Ltd. (Law Firm Democratic, Attorneys Dok-jin et al., Counsel for the defendant-appellant)

Defendant (Attorney Ha Young-ju, Counsel for defendant-appellant)

October 2, 2008

Seoul Central District Court Decision 2007Gahap49293 Decided April 3, 2008

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The defendant will implement the procedure for the cancellation registration of provisional registration of the right to claim ownership transfer, which was completed by the receipt No. 34533 on July 6, 1981 with respect to the real estate listed in the attached list to the co-defendant 5 of the court of first instance.

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

1. Purport of claim

A. The primary purport of the claim

Paragraph 2 of this Article.

B. Preliminary purport of claim

On June 30, 2006, which was concluded between the defendant and the co-defendant 5 of the court of first instance on the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"), the sales contract was revoked. The defendant will implement the procedure for registration of cancellation of the provisional registration of the provisional registration of the right to claim ownership transfer by the promise to sell and purchase the real estate of this case as of July 1, 1981, which was completed by the Yongsan District Court No. 34533 on July 6, 1981 by the Yongsan District Court No. 3453 on the real estate of this case (the plaintiff added the preliminary claim when submitting a petition of appeal after the decision of first instance was

2. Purport of appeal

The judgment of the court, such as paragraphs 1 and 2 of the Disposition

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively considering the overall purport of the arguments in the statements in Gap evidence 1, 2, 3, and Eul evidence 4, and no other counter-proofs exist.

A. On April 26, 1991, Co-Defendant 1 of the first instance trial entered into a bond guarantee insurance contract (hereinafter “instant guarantee insurance contract”) with the Plaintiff on the condition that “The insured: each bondholder, the amount of insurance coverage: 1,450,000,000 won: the insurance coverage period: April 25, 1991; and the overdue interest rate on the indemnity amount: the interest rate on April 25, 1991: the interest rate on the overdue interest of the loan of the financial institution: the interest rate on the delayed interest of the loan of the financial institution; and Co-Defendant 5 of the first instance trial entered into a bond guarantee contract with the Plaintiff on the same day.

B. Co-defendant 1 of the first instance court caused an insurance accident that could not pay interest on the bonds he issued on November 26, 1991, and the plaintiff paid 1,375,000,000 won to each bondholder from January 25, 1992 to April 25, 1994.

C. Since then, 863,634,069 won out of the amount of subrogated payment by the Plaintiff was repaid to the Plaintiff, the amount of the claim for reimbursement arising out of the amount of subrogated payment by the Plaintiff would amount to KRW 1,502,13,292 as of February 28, 2006 ( = 511,365,931 won in subrogation and damages for delay as to the unpaid amount of subrogated payment and KRW 990,767,361 in subrogation).

D. Meanwhile, on July 1, 1981, the Nonparty entered into a pre-sale agreement with co-Defendant 5 of the first instance trial on the instant real estate as a pre-sale right holder (hereinafter “the instant pre-sale agreement”). On July 6, 1981, the Nonparty made a provisional registration of the right to claim ownership transfer (hereinafter “the instant provisional registration”).

E. After that, on July 19, 2006, the co-defendant 5 of the first instance court filed for a supplementary registration to transfer the provisional registration of this case to the Defendant (hereinafter “instant supplementary registration”) on the ground that the Yongsan District Court received the Yongsan District Court’s receipt on July 19, 2006 from No. 26695 to June 30, 2006.

At the time of the completion of the supplementary registration of this case, the registration of provisional seizure in the name of the plaintiff (the former "Korea Guarantee Insurance Co., Ltd."), the provisional seizure in the name of the plaintiff (the former "Korean Guarantee Insurance Co., Ltd."), as of October 10, 2003, No. 31917, which was received on October 10, 2003, was made on November 29, 2004, and (3) the provisional seizure in the name of the non-party bank in the name of the Seoul Western Bank as of November 29, 2004, which was received on November 29, 2004.

F. In addition, when the instant supplementary registration has been made, the co-defendant 5 of the first instance trial was in an insolvent state in excess of active property.

2. Judgment on the main claim

(a) The primary cause of the claim;

The plaintiff asserts that since the provisional registration of this case transferred to the defendant for the following reasons is null and void, the plaintiff, as the co-defendant 5 of the court of first instance, sought the cancellation of the provisional registration of this case, which was completed for the real estate of this case by subrogation of the co-defendant 5 of the

(1) The right to the completion of the instant provisional registration, which the Nonparty had against the Co-Defendant 5 of the first instance trial, was extinguished upon the lapse of the exclusion period from July 1, 1981, which was the date of the instant purchase and sale promise. Thus, Co-Defendant 5 of the first instance trial may seek the implementation of the procedure for the cancellation registration of the instant provisional registration against the Defendant by filing a claim for the removal of interference based on ownership. Accordingly, the Plaintiff, a co-defendant 5 of the first instance trial, who is a co-defendant 5 of the first instance trial, may seek the implementation of the procedure for the cancellation registration of the instant provisional registration on behalf of the Defendant on behalf of the

(2) In addition, the co-defendant 5 of the first instance court, in collusion with the Defendant, who is a fraud, completed the additional registration of the instant provisional registration under the presumption that there was a new trade reservation with the Defendant in order to avoid the liability for reimbursement against the Plaintiff. As such, the provisional registration of the instant case transferred to the Defendant constitutes null and void based on the false conspiracy indication. Therefore, the Plaintiff, who is a co-defendant 5 of the first instance court co-defendant 5, can seek the implementation of the procedure for cancellation registration of the instant provisional registration by subrogation of the Defendant, who is the insolvent co-defendant 5

B. Determination as to the termination of the right to complete the purchase and sale reservation

(1) Determination of the cause of the claim

Under Article 564 (a) of the Civil Act, the right that the other party to the purchase and sale becomes effective by expressing his/her intention to complete the purchase and sale, i.e., the right to complete the sale and purchase promise, if there is a sort of right to complete the sale and purchase promise, within the period of time, and if there is no such agreement, within 10 years from the date of establishment of the promise, it shall be exercised; and if the period of time is exceeded, the right to complete the purchase and sale shall be extinguished upon the lapse of the limitation period. Thus, there is no assertion or proof as to the fact that the joint defendant 5 of the first instance trial and the non-party separately agreed to exercise the right to complete the purchase and sale under the promise of this case. Thus, the right to complete the sale and purchase was extinguished after the lapse of the limitation period from July 1, 1991, which was the date of the purchase and sale promise of this case.

On June 2006, after the expiration of the exclusion period of the right to complete the sale agreement, the Defendant asserts to the effect that the right to complete the sale agreement was not extinguished despite the expiration of the exclusion period. However, the Defendant’s assertion is without merit, since the period of exclusion is not recognized to waive the profit due to the lapse of the exclusion period, since the Defendant’s assertion is without merit.

(2) Determination of the Defendant’s assertion

(A) Defendant’s assertion

On August 2, 199, the Defendant entered into a contract to purchase the instant real estate from Co-Defendant 5 of the first instance trial (hereinafter “instant contract”). On June 30, 2006, the Defendant and Co-Defendant 5 of the first instance trial asserted that the instant provisional registration is valid as a provisional registration for the purpose of preserving the right to claim ownership transfer registration in order to preserve the right to claim ownership transfer registration first in relation to the method of implementing the procedure for ownership transfer registration pursuant to the instant contract. However, the instant provisional registration is intended to be useful in the way of completing the additional registration for the reason of transfer of the right to claim ownership transfer registration as to the instant provisional registration.

(B) Determination

1) In a case where the right to complete the purchase and sale reservation, which is the right which is the cause of the provisional registration, is extinguished due to the lapse of the exclusion period, etc., the provisional registration shall lose its effect; however, in a case where the owner of the real estate, after selling it to a third party, has agreed on the diversion of the provisional registration with the purport of making a new buyer an additional registration to preserve the previous ownership transfer registration by using a provisional registration remaining for preserving the previous right to claim ownership transfer registration, and has completed the additional registration in fact, the buyer who has received the additional registration may at any time assert the agreement on the diversion of the provisional registration

As to this case, in full view of the purport of the statements and arguments in subparagraphs B through B, Eul's evidence Nos. 1 through 4, Eul's evidence No. 6 through Eul's evidence No. 8-5, the defendant agreed on June 30, 2006 that a provisional registration shall be made to preserve the right to claim ownership transfer registration under the sales contract of this case with co-defendant 5 of the first instance court, but the provisional registration of this case shall be made in a way that the supplementary registration under the name of the defendant was made on July 19, 2006. Accordingly, the above agreement between the defendant and co-defendant 5 of the first instance court on July 19, 2006 shall be valid as an agreement on the utility of the provisional registration of this case invalidated due to the extinguishment of the right to complete the sale and purchase, so the defendant can oppose the above agreement on the utility of the provisional registration of this case against co-defendant 5 of the first instance court on the ground of the cancellation of the above provisional registration's utilization.

However, the utility of the registration invalidated due to the extinguishment of the real relation is allowed only in cases where there is no third party having an interest in the registration before the agreement to divert the registration is reached (see Supreme Court Decision 2001Da2846, Dec. 6, 2002, etc.). Thus, the defendant cannot oppose the plaintiff, who is the interested party having made the provisional attachment registration of this case on December 18, 191, prior to the completion of the provisional attachment registration pursuant to the above agreement on the diversion of provisional registration.

2) On this issue, the defendant asserts that the above three provisional attachment registration was cancelled as of December 21, 2007, which was made at the time the provisional registration of this case was made again, and that the cancellation of provisional attachment becomes effective retroactively. Thus, the plaintiff lost his status as a third party interested as of the cancellation of the existing provisional attachment registration.

Therefore, according to the statements in evidence Nos. 8, 8, 8, and 4 of the court of first instance, co-defendant 5 of the court of first instance applied for the cancellation of provisional seizure on the ground that the plaintiff did not institute any lawsuit on the part of 10 years from the registration of provisional seizure completed on December 18, 1991. On July 31, 2007, the above provisional seizure was revoked and the above provisional seizure registration was revoked. The plaintiff again received the provisional seizure decision against Co-defendant 5 of the court of first instance against Seoul Western District Court Decision 2007Kadan5176, and the provisional seizure registration was completed on June 27, 2007. The provisional attachment registration in the name of the bank at the time of the additional attachment of this case was completed on the ground that the provisional attachment registration was invalid for the reason that the provisional attachment registration was revoked for 10 years prior to the execution of the provisional attachment registration, and it is difficult to deem that the provisional attachment registration was revoked.

In addition, even if there is room to view that the provisional registration of this case was useful as of December 21, 2007, after the Defendant’s cancellation of all three provisional seizure registrations completed at the time of the instant additional attachment, according to the statement in Eul-B evidence No. 4, prior to the agreement, the provisional attachment registration of Seoul Western District Court 2007Kadan5176, which was the Plaintiff as the creditor, was already completed prior to the agreement, and thus, it cannot be asserted against the Plaintiff as the interested party.

C. Sub-committee

Therefore, without any need to further examine the plaintiff's other arguments, the provisional registration of this case and the supplementary registration of this case based thereon shall be deemed to fall under the registration of invalidity of cause.

3. Conclusion

Therefore, the defendant is obligated to perform the procedure of cancellation of the provisional registration of this case, since the right to claim transfer of ownership, which was completed on July 6, 1981 by the Seoul Western District Court Decision 34533 on the real estate, is obligated to jointly defendant 5 of the first instance trial, the plaintiff's claim of this case, which is sought by subrogation of codefendant 5 of the first instance trial, shall be accepted as reasonable. Since the part against the defendant in the judgment of the first instance is unfair with different conclusions, the above part in the judgment of the first instance court shall be revoked, and the defendant shall be ordered to perform the procedure of cancellation of the provisional registration of this case. It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Jae-hee (Presiding Judge)