209 Ghana 2510 Registration for cancellation of ownership

209da61793 (Intervention) Registration of cancellation of ownership

A

1. B

2. C.

D. Corporation

March 18, 2010

May 6, 2010

1. Defendant C shall implement the registration procedure for transfer of ownership on July 9, 2008 with respect to shares of 1/4 of the real estate listed in the separate sheet to the Plaintiff.

2. It is confirmed that 1/4 shares of the real estate listed in the separate sheet among the Plaintiff, Defendants, and independent party intervenors are owned by Defendant B.

3. The plaintiff's claim against the defendant B and the remaining claims against the plaintiff by the independent party intervenor are all dismissed.

4. Of the costs of the principal lawsuit, the part arising between the Plaintiff and the Defendant C is assessed against the Plaintiff, and the part arising between the Plaintiff and the Defendant B, and 1/2 of the part arising between the independent party intervenor and the Plaintiff out of the costs of the lawsuit arising from the intervention by the independent party intervenor are assessed against the independent party intervenor, and the remainder is assessed against the Defendants, respectively.

The principal lawsuit: With respect to the portion of 1/4 of the real estate listed in the separate sheet (hereinafter referred to as the "real estate of this case"), the defendant Eul followed the procedure for the cancellation of ownership transfer registration completed on August 6, 2008 by the Inyang District Court of Suwon District and the 64849, which was completed on August 6, 2008, and the defendant C will implement the procedure for the registration of ownership transfer for the plaintiff on July 9, 2008.

An independent party participation: It is confirmed that the share of 1/4 of the instant real estate is owned by Defendant B between the Plaintiff, the Defendants, and the Intervenor of the independent party. The sales contract concluded on July 9, 2008 between the Plaintiff and the Defendant C with respect to the share of 1/4 of the instant real estate is revoked.

1. Basic facts

A. On June 29, 2004, Defendant C completed the registration of ownership transfer with respect to the shares of 1/4 of the instant real estate (hereinafter “instant shares”).

B. On July 9, 2008, the defendant C entered into a sales contract with the plaintiff to sell the shares of this case in KRW 500 million (hereinafter "the sales contract of this case"). However, on July 21, 2008, the transfer registration on the shares of this case (hereinafter "the transfer registration of this case") was completed to the defendant B on August 6, 2008. D on February 26, 2008, the defendant C entered into a notarial deed with the intent to issue and deliver a notarial deed with a face value of KRW 240,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

E. On August 25, 2008, the Intervenor received a decision to commence compulsory auction on the instant shares, which was completed under Defendant B’s name, based on the instant notarial deed No. 2, and accordingly, the compulsory auction procedure for the instant shares is in progress.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Byung evidence Nos. 1, 7, witness E's partial witness, the purport of the whole pleadings

2. Whether an application for intervention by an independent party is lawful;

A. The plaintiff and the intervenor's assertion

As to the instant case where the Plaintiff sought cancellation against Defendant B on the premise that the cause of the instant transfer registration is null and void, and the Intervenor sought enforcement against Defendant C with respect to the instant shares based on the No. 2 Deed, the Intervenor asserted that the Intervenor’s participation in the instant lawsuit is unlawful on the ground that the Plaintiff’s cancellation of the instant transfer registration could be directly infringed upon the Plaintiff’s rights or status when the Plaintiff won the instant lawsuit because he did not actively dispute the Plaintiff’s claim, and that the instant transfer registration could be cancelled, and that the instant sales contract constitutes fraudulent act. Accordingly, the Plaintiff and the Defendants did not file the instant lawsuit with the intent to impair the Intervenor, but did not have the Intervenor’s rights to be infringed by the instant principal lawsuit due to the Plaintiff’s absence of the Intervenor’s claims against the Defendants.

B. Determination on the legitimacy of the request for intervention by an independent party

Unlike the case of participation in a claim for right, in the case of participation in a marine accident prevention under the latter part of Article 79 (1) of the Civil Procedure Act, where there is concern that the intervenor's rights or legal status may be infringed as a result of the marine accident prevention lawsuit, the intervenor may participate in the judgment of the court in order to prevent the judgment of the court in order to be affirmed as a result of the marine accident prevention lawsuit, so it is objectively recognized that the plaintiff and the defendant have the intent to harm the intervenor through the lawsuit in question, and where it is deemed that the intervenor's rights or legal status may be infringed as a result of the lawsuit in question, the application shall be lawful (see Supreme Court Decision 9Da3531, 35348, Sept. 28, 2001).

Therefore, Defendant B, after completing the registration of the transfer of this case, had the right to collateral security against Nonparty F and G on two occasions. Thus, it is common to dispute the obligation to cancel the registration of this case. However, in light of the fact that Defendant B submitted a written reply accepting the Plaintiff’s claim and Defendant C did not comply with the reply, it is reasonable to deem that the Plaintiff and the Defendants had the intent to impair the Intervenor’s status as a participant through the lawsuit of this case. Further, as seen above, the Plaintiff could file a claim against the Defendants based on the No. 1 and No. 2 No. 1 and No. 2, and upon accepting the main lawsuit of this case, the Plaintiff could file an application for the cancellation of the registration of the transfer of this case under Defendant B’s name and the registration of the transfer of ownership in the name of the Plaintiff, and thus, the Plaintiff could interfere with the execution of the claim under the No. 1 and No. 2, and thus, the Plaintiff’s claim against the Plaintiff and the Defendants for the cancellation of the registration of this case’s share is legitimate.

3. Judgment on the plaintiff's main claim

A. Determination as to the claim against Defendant C

According to the above facts of recognition, Defendant C is obligated to implement the registration procedure for ownership transfer on July 9, 2008 with respect to the instant shares to the Plaintiff.

B. Determination as to the claim against Defendant B

The plaintiff asserts that the non-party E, the spouse of the defendant C, forged the registration document without the permission of the defendant C, and completed the registration of ownership transfer with respect to the share in this case, and the defendant B also did not consent thereto, so the registration of ownership transfer in this case should be cancelled by the invalidation of the cause

Unless there are special circumstances, it is presumed that the registration of the transfer of the real estate was completed lawfully in the cause and procedure (see, e.g., Supreme Court Decision 2001Da72029, Feb. 5, 2002), and the procedure and cause should be proved to the party who asserts the unjust cause. On the other hand, unless there are special circumstances, it shall be presumed that the registration of transfer of the real estate of this case has been lawfully completed the procedure necessary for the registration of transfer of this case, unless the registration of transfer of this case has been completed, and it shall be presumed that the procedure for the registration of transfer of the real estate of this case was duly completed. The following circumstances, namely, Eul is the spouse of the defendant C, and that the registration of the transfer of the real estate of this case was completed on August 25, 2008, and the registration of the transfer of the real estate of this case was completed on the non-party B under the name of the defendant B, and there is no evidence to acknowledge that the registration of transfer of the real estate of this case was being completed against the defendant C's testimony of this case.

4. Judgment on the Intervenor’s claim

A. In a case where there is a concern that the rights or legal status of the claimant for the confirmation of ownership may be infringed upon as a result of a fraudulent legal act conducted between others as the cause of the claim, the interests to seek the confirmation of invalidation cannot be denied against others as to the legal act which caused the claim for the confirmation of invalidity. This is because it can be deemed an effective and appropriate means to prevent the infringement of his rights or legal status by the final and conclusive judgment as at the end of the claim for the confirmation of nullity, and by its execution (see Supreme Court Decisions 2000Da12785, 12792, August 24, 2001; 2000Da12785, 12792, April 27, 1990).

As seen earlier, Defendant B completed the instant transfer registration on the ground of sale on July 21, 2008 with respect to the instant shares on the ground of sale on July 21, 2008, and presumed to have lawfully gone through the procedure necessary for the instant transfer registration, and otherwise, there is no proof as to the fact that the instant transfer registration was unlawful, the instant shares are owned by Defendant B, and as long as the Plaintiff and Defendant B asserted that the instant transfer registration should be cancelled on the ground that the instant transfer registration was unlawful, the Intervenor would be deemed to be the ownership of Defendant B, and the Plaintiff and Defendant B would be deemed to be the owner of the instant shares. The Intervenor’s claim against the Plaintiff and the Defendants for the confirmation is justified.

B. Claim for revocation of fraudulent act

The Intervenor is a creditor against Defendant C based on the No. 2 No. 1, and the instant sales contract was concluded in excess of the obligation, and thus, the instant sales contract should be revoked as a fraudulent act. Thus, even based on all evidence submitted by the Intervenor, it is insufficient to acknowledge the fact that Defendant C was in excess of the obligation at the time of entering into the instant sales contract, or that it was in excess of the obligation by entering into the instant sales contract, and there is no other evidence to acknowledge it ( there is no evidence to prove that Defendant C sold the instant shares at salt price or that the instant shares were the sole property of Defendant C at the time of the instant sales contract). Accordingly, the Intervenor’s claim for revocation of the Intervenor’s fraudulent act is rejected.

5. Conclusion

Therefore, the plaintiff's claim against the defendant C shall be accepted on the ground of its reason, and the claim against the defendant B shall be dismissed on the ground of its reason. The plaintiff's claim against the plaintiff and the defendants for confirmation of ownership is accepted on the ground of its reason, and the remaining claim against the plaintiff is dismissed on the ground of its reason,

Judge Freeboard