In a case where a provisional registration has been made to preserve the right to claim ownership transfer registration on a real estate for the purpose of securing bonds, and documents required for this registration has been delivered in advance and the period of payment for such bonds has expired but they have not gone through liquidation procedures under the Provisional Registration Security Act, whether the " de facto acquisition" under Article 105 (2) of the

Article 29(1)1 of the Local Tax Act provides that a person shall be liable to pay acquisition tax when acquiring an object of taxation, and Article 105(2) of the Local Tax Act provides that a person who actually acquires real estate shall be deemed to have been acquired even if he/she fails to comply with registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act. Here, "actual acquisition" refers to cases where, in general, does not meet the formal requirements for acquisition of ownership such as registration, but meets the substantive requirements for acquisition of ownership such as the payment of the price, although he/she fails to meet the formal requirements for acquisition of ownership. However, even if a provisional registration for preserving a right to claim ownership transfer registration of real estate for the purpose of securing bonds has been made and documents necessary for the registration have been delivered in advance, even if the due date for payment has expired, it cannot be said that

Articles 29(1)1 and 105(2) of the Local Tax Act, Articles 3 and 4 of the Provisional Registration Security, etc. Act

Supreme Court Decision 99Du5955 delivered on February 9, 2001 (Gong2001Sang, 670) Supreme Court Decision 98Du17067 Delivered on November 12, 1999 (Gong2001Sang, 661) Supreme Court Decision 2000Du2204 Delivered on February 9, 2001 (Gong2001Sang, 670)

Plaintiff

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Seoul High Court Decision 99Nu10638 delivered on December 15, 1999

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

Article 29(1)1 of the Local Tax Act provides that a person shall be liable to pay acquisition tax when acquiring an object of taxation. Article 105(2) of the Local Tax Act provides that a person who actually acquires real estate shall be deemed to have been acquired even if he/she fails to comply with registration, etc. under the provisions of relevant Acts and subordinate statutes, such as the Civil Act. Here, “ de facto acquisition” refers to cases where, in general, does not meet the formal requirements for acquisition of ownership such as registration, but the actual requirements for acquisition of ownership such as payment are satisfied (see, e.g., Supreme Court Decisions 98Du17067, Nov. 12, 1999; 9Du5955, Feb. 9, 2001). Even if a provisional registration for preserving the right to claim ownership transfer registration of real estate is completed for the purpose of securing a bond and the payment period for the bond expires after the delivery of documents necessary for the registration, the actual acquisition under Article 105(2) of the Provisional Registration Security Act cannot be deemed to have been completed all liquidation procedures prescribed in Articles 3 and 4.

According to the facts and records cited by the judgment of the court of first instance as cited by the court below, around December 23, 1996, the plaintiff was to receive only KRW 90,00,000 out of KRW 210,000,000 from Nonparty 1, and agreed to receive the remainder of KRW 120,000,000 until June 30, 1997. In order to secure the remainder of the above loan claims, on January 16, 1997, the plaintiff made a provisional registration to secure the right to claim ownership transfer of the real estate of this case owned by Nonparty 1, and received documents necessary for the above provisional registration based on the above provisional registration, and thereafter, the plaintiff did not receive the remainder of the loan claims until March 17, 1998, and then filed an application for a provisional registration with Nonparty 1, a certified judicial scrivener on March 17, 199, and notified the defendant of the above provisional registration based on the order of this case.

If the facts are the same, the plaintiff completed provisional registration on the real estate of this case for the purpose of securing the loan claim against the non-party 1, and received the documents necessary for this registration in advance, and the non-party 1 reported the acquisition of the real estate of this case to the defendant immediately without going through liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, which did not repay the loan at the maturity of payment. Thus, the plaintiff cannot be deemed to have actually acquired the real estate of this case. The conclusion of the court below that the plaintiff cannot be deemed to have actually acquired the real estate of this case is just, and there is no error of law such as misunderstanding the legal principles as to the acquisition in acquisition tax,

The remaining grounds of appeal on the rescission of agreement are based on the premise that the Plaintiff acquired the instant real estate. As seen earlier, the lower court’s judgment that the Plaintiff could not be deemed to have actually acquired the instant real estate is without merit and without further examining it.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)