Effects of registration of real estate

Under the new civil law that adopted the form principle as to the change in real rights, the legal act on the change in real rights of real estate can not take effect only between the third parties unless the registration is made, and the registration on real estate can be a kind of creative effect because it is not a simple method of public notice or a requirement for setting up against the third party, but a legal act aimed at the change in real rights itself.

Article 186 of the Civil Act

Plaintiff

Defendant

Seoul Civil History District Court (62Na374)

The final appeal on the part of the original judgment accepting the Plaintiff’s claim seeking to remove the 1st 4th Ga-pon building among the original judgment shall be dismissed.

Of the original judgment, the part accepting the Plaintiff’s claim for an explanation against the 13th square meters of the building building on the 13th square meters of the original judgment, which cited the Plaintiff’s claim for an explanation against the 9th 4th 4th 8th 00 square meters in the attached drawing (A), (b), (c), (d), (e), and (f) portion, shall be reversed and remanded to the Seoul

The costs of appeal against this case shall be assessed against the defendant.

The grounds for the final appeal are as shown in the statement of the grounds for final appeal submitted by the attorney Kim Chang-hee, and the response thereto is as shown in the plaintiff's written answer submitted by the attorney Kim Chang-hee, and the gist of the grounds for final appeal is as follows.

(1) The defendant does not occupy the building of this case, and the building of this case is not located in the session of Dongdaemun-gu Seoul Metropolitan Government 73-3, 73-3 of the same 73-13 of the same 73-2, such as the plaintiff's head of the plaintiff, and submitted the Eul evidence No. 1 of the same 73-13 of the same 73-2. The original judgment rejected this judgment and without clear appraisal and measurement, it is against the rules of evidence that the defendant occupied the building of this case by adopting each of the above evidence, although it is not possible to determine the location of the building of the non-party 1 and the non-party 2 of the non-party 1 and the non-party 2 of the original 8-2 of the evidence.

(2) On August 24, 1961, the original judgment recognized that the plaintiff purchased the building unregistered from the defendant on August 24, 1961, but the defendant did not dispute that the building was not sold or purchased, and since there was no registration under the name of the plaintiff on this case sold after the enforcement of the new Civil Act, the plaintiff merely did not acquire the ownership, but the original judgment which rendered a judgment on the name of the plaintiff on the basis of the claim arising from the sale and purchase contract between the plaintiff and the defendant does not escape from destruction because it was erroneous in the misapprehension of the original judgment. According to the facts established by the original judgment, the plaintiff purchased 44 square meters from the defendant on June 28, 1961, and completed the registration of ownership transfer from 1, 1961, 1, 1, 1, 1, 3, 1, 4, 1, 1, 1, 4, 1, 1, 1, 4 (1), 2, 5 (4) (1) (1) (2) (2) (3) (2) (3) (2)))) (3) (No

However, since the plaintiff did not yet file a claim for the registration of ownership transfer with respect to the building which was not registered, it is argued that the plaintiff filed a claim for the principal claim based on the ownership based on the purchase and sale contract, rather than the claim for the principal claim based on the claim. The original judgment also accepted the plaintiff's principal claim for the same purport, and under the new Civil Act that adopted the form principle as to the change in real rights as well as the third party's non-registration as clear in accordance with Article 186 of the Civil Act. The registration of real estate becomes a kind of creation effect because the registration of real estate becomes not only a method of public announcement or a requirement for the establishment of a legal act aimed at the change in real rights, but also a requirement for the change in real rights. Therefore, even if a simple sale and sale contract was concluded between the plaintiff and the defendant with respect to the building, the plaintiff who has not yet completed the registration can not acquire the ownership of the building, and it is merely a claim for the registration.

Nevertheless, the original judgment was based on a simple claim based on the above sales contract and rendered a ruling that cited the plaintiff's claim seeking the indication (A), (b), (c), (d), (e) and (f) of the attached drawing among the buildings on which the original judgment was based on the simple claim, and that the original judgment was still recognized as having ownership, and eventually, the original judgment is erroneous in matters of law by misapprehending the legal principles as to the difference between claims and real rights and changes in real rights, and by misapprehending its application, which affected the conclusion of the judgment, and thus, the theory of lawsuit is reasonable in this point, and therefore, only this part of the original judgment shall not be reversed.

Therefore, without further proceeding to decide on the remaining points, the court below's simultaneous reversal of only this part of the original judgment shall be remanded to the Panel Division of Seoul Civil Procedure Act in order to re-examine and determine this part. It is so decided as per Disposition by applying Articles 400, 395, 384, and the former part of Article 406 (1) and the main text of Articles 89, 92, and 95 of the Civil Procedure Act.

For the purpose of serving a judge on the second day (Presiding Judge)