In a case where multiple right holders have completed provisional registration to preserve the right to demand ownership transfer, whether some right holders can independently request principal registration of their own shares (affirmative)

Inasmuch as a co-owner is unable to dispose of co-owned property without the consent of other co-owners, but his/her share can be disposed of independently. Thus, in cases where a multiple right-holder completes a provisional registration to preserve the right to claim ownership transfer, barring any special circumstance, any one of the rights-holder may solely file for the principal registration based on his/her share, barring any special circumstance. The same applies to cases where a provisional registration is completed in the name of multiple rights-holder in order to preserve the right to claim ownership transfer arising from the termination of title trust, and the same applies to cases where a provisional registration is completed in the name of multiple

Article 63 of the former Civil Procedure Act (amended by Act No. 6626 of January 26, 2002), Article 103 of the Civil Act (amended by Act No. 67 of January 26, 200), Articles 103 [title trust], 263, 264, and 278 of the Civil Act

Supreme Court Decision 83Meu2282 Decided June 12, 1984 (Gong1984, 1272) (Gong1985, 908) Decided May 28, 1985 (Gong1985, 908), Supreme Court Decision 85Meu604 Decided October 8, 1985 (Gong1985, 147), Supreme Court Decision 85Meu2203 Decided May 26, 1987 (Gong1987, 1049)

Plaintiff (Counterclaim Defendant) (Law Firm Chuncheon, Attorneys Cho Jae-ap et al., Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff)

Gwangju High Court Decision 200Na821, 838 delivered on June 15, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

1. Judgment on the counterclaim part

The court below held that the provisional registration in the name of the plaintiff (Counterclaim defendant, hereinafter referred to as "the plaintiff"), and non-party 1, the father of the defendant (Counterclaim plaintiff, hereinafter referred to as "the plaintiff"), has completed provisional registration for preserving the right to claim ownership transfer in his name and non-party 2 in order to prevent the defendant, whose intellectual ability was somewhat low compared to the general public, from disposing of each of the real estate of this case in his name and making the ownership transfer registration and preservation registration in his name. However, in order to prevent the defendant from easily disposing of each of the real estate of this case, the plaintiff did not have the right to claim ownership transfer against the defendant as to the 1/2 share of each of the real estate of this case, and there is no violation of the rules of evidence or misapprehension of the legal principles as alleged in the grounds of appeal. Therefore, this part of the grounds of appeal cannot be accepted, and as long as the court below's judgment that the provisional registration in the name of the plaintiff is null and void, the ground of appeal that there was no violation of the rules of evidence or misapprehension of legal principles.

2. Determination on the main part of the lawsuit

A. In this case, the Plaintiff asserted that, as the cause of the principal claim, the Plaintiff completed the provisional registration under the name of Nonparty 2 on May 17, 1982 in order to preserve the right to claim ownership transfer after having title trust with the Defendant, after having terminated the title trust, on the ground of a pre-sale agreement on May 17, 1982, the Plaintiff filed a claim for the registration of ownership transfer on May 17, 1982 or on May 18, 1983 with respect to 1/2 shares of each of the instant real estate.

In regard to this, the lower court determined that the lawsuit seeking the principal registration of transfer of ownership on the ground of the completion of sale reservation is unlawful, since the right to complete sale reservation, and the exercise of the right to complete sale reservation and the exercise of the right to claim ownership transfer registration accordingly, should be exercised by multiple right holders, as a disposal act of the right to complete sale reservation, and thus, the lawsuit seeking the principal registration of transfer of ownership on the ground of the completion of sale reservation is a requisite co-litigation, and therefore, the lawsuit brought against the Plaintiff, who completed the provisional registration jointly with Nonparty 2 for preserving the right to claim transfer of ownership, solely on his own, against the relevant shares, is unlawful.

B. However, the Plaintiff’s principal claim as a principal claim is seeking the implementation of the principal registration procedure based on provisional registration based on the completion of sale or purchase reservation, but it is alleged that the principal claim was completed in the form of sale reservation in order to preserve the ownership transfer right claim based on the cause of the cancellation of title trust. As such, the Plaintiff’s principal claim should be deemed to have been seeking the implementation of the ownership transfer registration procedure based on the cancellation of title trust. Therefore, the lower court erred in understanding the principal claim on the premise that the Plaintiff and Nonparty 2 are under the completion of the right to complete the purchase and sale reservation.

Meanwhile, a co-owner may not dispose of the co-owned property without the consent of other co-owners, but his/her share can be disposed of independently. Thus, in cases where multiple rights-holder completes a provisional registration to preserve the right to claim ownership transfer, barring any special circumstance, a person among those rights-holder may solely file for the principal registration based on his/her share, barring any special circumstance. The same applies to cases where a provisional registration is completed in the name of multiple rights-holder to preserve the right to claim ownership transfer arising from the termination of title trust, and the same applies to cases where a provisional registration is completed in the name of multiple rights-holder to preserve the right

C. If so, the court below rejected the principal lawsuit on the premise that a lawsuit seeking the implementation of the principal registration on the ground of the completion of a sale reservation is a requisite co-litigation in the event that a provisional registration has been completed in the name of multiple right holders is completed, it erred in understanding the principal claim and thereby erred in the misapprehension of the legal principle on the method to exercise the right when multiple rights holders jointly hold the right to claim ownership transfer registration. However, as seen above, since the provisional registration on each real estate of this case is null and void, the principal lawsuit claiming ownership transfer registration on the basis of such provisional registration is without merit, and the judgment of the court below dismissed the lawsuit in this case where only the plaintiff appealed, and cannot render a judgment of dismissing a claim more unfavorable to the plaintiff. Therefore, the court below'

3. Conclusion

Therefore, the appeal shall be dismissed, and the costs of the lawsuit shall be borne, and it is so decided as per Disposition.

Justices Zwon (Presiding Justice)