The defendant bears the obligation to cancel provisional registration according to the exclusion period of the exercise of the right to complete the purchase and sale reservation.

Where a provisional registration is not exercised for ten years, a provisional registration is required to be cancelled, and the defendant's defense that the provisional registration is not a provisional registration for preserving the right to claim ownership transfer registration is without merit.

2016 Mada 109798 Cancellation of Provisional Registration

Korea

▲▲▲

November 11, 2016

December 9, 2016

1. The Defendant shall implement the registration procedure for cancellation of the registration of the registration of the additional branch court of the Incheon District Court with respect to the portion of 1/2 of the real estate in the attached list to the Plaintiff as to each real estate listed in the attached list, and the provisional claim for transfer of ownership completed by the receipt No. 98822 on July 2

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff holds a tax claim of KRW 220,075,170 against AA, and the Defendant and AA are one-half equity right holders of each real estate listed in the separate sheet.

B. On July 21, 2005, the Defendant completed the provisional registration of the claim for transfer of shares on July 18, 2005 on each real estate listed in the separate sheet (hereinafter “the provisional registration of this case”) on July 18, 2005.

C. AA is in excess of its obligation as of the closing date of the instant pleadings.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 6, purport of the whole pleadings

2. Determination

A. The parties' assertion

The plaintiff asserts that the provisional registration of this case is a provisional registration completed to preserve the right to claim ownership transfer, and the defendant asserts that the provisional registration of this case is a provisional registration completed to secure the payment of KRW 3,000,000 every month from the plaintiff to the fees or rents equivalent to the defendant's shares.

B. Determination on the provisional registration of this case

In principle, whether a provisional registration is a provisional registration is a provisional registration or a provisional registration for security is not determined formally by the type of documents sent on the registry or at the time of the registration, but by the substance of the transaction and the interpretation of the intent of the parties concerned (see, e.g., Supreme Court Decision 91Da36932, Feb. 11, 1992). The issue of whether a provisional registration is a provisional registration for the purpose of preserving the priority according to the purchase and sale reservation should be proved by the claimant. However, as long as a disposition document on a juristic act causing the provisional registration in this case was not submitted, the substance of the provisional registration in this case shall be determined in light of the circumstantial evidence

In light of the following circumstances: (a) the Defendant, as a person holding a provisional registration of this case, did not submit a disposal document supporting his/her assertion as a party to a legal act causing the provisional registration of this case, which was entered into with AA as a party to the provisional registration of this case; (b) the Defendant agreed to receive KRW 3,00,000 per month as corresponding to his/her share of the real estate stated in the separate list, and even if only KRW 7,50,000 was paid for eight years after the establishment of the provisional registration of this case, if the provisional registration of this case was registered as a collateral, he/she cannot be deemed to have asserted the right as the secured party or has not executed the security right thereof; and (c) the Defendant did not claim for the provisional registration of this case as a collateral payment of KRW 7,00,000,000 as the security interest of this case under the provisional registration of this case, and did not claim for the provisional registration of this case as the security interest of this case or the security interest of this case, and did not claim for the provisional registration of this case.

C. Determination on the termination of provisional registration of this case

In other words, the right to complete the sale and purchase by expressing the other party's intention of completion of the contract for sale and purchase, namely, the right to complete the contract for sale and purchase, if it is a kind of right to create the exercise period between the parties, and if there is no such an agreement, it shall be exercised within 10 years from the time of establishment of the contract, and the right to complete the contract shall be extinguished upon the lapse of the exclusion period (see, e.g., Supreme Court Decisions 91Da4476, Jul. 28, 1992; 94Da22682, 22699, Nov. 10, 195; 96Da47494, 47500, Jul. 25, 1997; 200Meu15, Aug. 18, 2005).

D. Sub-committee

Therefore, since the provisional registration of this case completed with respect to the shares of AA out of each real estate listed in the separate sheet is invalid registration, the defendant is obligated to implement the procedure for cancellation registration of the provisional registration of this case to the plaintiff seeking cancellation of the provisional registration of this case in subrogation of AA as the creditor of the insolvency, AA.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and it is so decided as per Disposition.