Plaintiff (Attorney Kim Jong-sung, Counsel for plaintiff-appellant)

Defendant (Attorney Jeon Chang-soo, Counsel for the defendant-appellant)

November 29, 2018

1. The Defendant shall implement the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed by the Seoul Eastern District Court No. 30714 on July 22, 1998 with respect to the portion of 1/3 in the name of Nonparty 2 of Gangdong-gu Seoul Metropolitan Government (No. 1,458 square meters omitted) in the name of the Plaintiff.

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

The same shall apply to the order.

1. Basic facts

A. On December 24, 1986, Nonparty 2 completed the registration of ownership transfer based on sale with respect to the 1/3 share in Nonparty 5’s name (hereinafter “instant real estate”). On July 22, 1998, Nonparty 2 completed the registration of ownership transfer with respect to the 1/3 share in Nonparty 5’s name (hereinafter “instant real estate”). On July 22, 1998, Nonparty 2 completed the registration of ownership transfer on the part of Nonparty 6 (the husband of Nonparty 2) and the maximum debt amount of KRW 30 million (hereinafter “instant mortgage registration”).

B. Around July 1998, Nonparty 2 married her husband and wife resided in the United States and has been living in the United States until now. Nonparty 2, on February 23, 1999, filed a provisional registration of the right to claim registration of transfer of right with respect to Nonparty 1, who is a usual relative, for the management of the instant real estate, etc.

C. However, with the knowledge that Nonparty 2 did not return to the Republic of Korea, Nonparty 1 filed a lawsuit against Nonparty 2 claiming the implementation of the principal registration based on the provisional registration of the instant real estate on May 14, 2007, Seoul Eastern District Court 2007Kadan27411, and the said lawsuit was conducted by service, and the judgment in favor of Nonparty 1 was rendered on July 25, 2007 and confirmed external form, and Nonparty 1 was issued with the delivery certificate and confirmation certificate of the said judgment on August 20 and 30 of the same month.

D. After that, the non-party 2 knew of the fact of the above judgment and filed an appeal for subsequent completion with Seoul Eastern District Court 2008Na2571 on March 5, 2008. On March 18, 2009, the above judgment of the first instance was revoked, and the judgment dismissing the non-party 1's claim was rendered. The above judgment became final and conclusive on April 9, 2009 as it became final and conclusive on March 9, 2009, on the ground that both the promise for the above provisional registration was concluded by a false declaration of intent made between the non-party 1 and the non-party 2.

E. However, after the judgment of the first instance, Nonparty 1: (a) had a delivery certificate and a confirmation certificate issued by Nonparty 2 before filing a subsequent appeal; (b) completed the share transfer registration based on the final judgment on January 8, 2015 under his/her own name on January 8, 2015; and (c) Nonparty 3, as the husband of Nonparty 1, knew of the above fact on behalf of Nonparty 1 and completed the share transfer registration based on the division of property on his/her own name on November 18, 2014.

F. After that, Nonparty 3 sold the instant real estate to Nonparty 4, and Nonparty 4 sold each of the instant real estate to the Plaintiff. On February 13, 2018, the Plaintiff completed the transfer registration on February 5, 2018 on the instant real estate.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 9, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

Since the secured claim of the instant right to collateral security has expired due to the expiration of extinctive prescription, the Defendant is obligated to cancel the instant right to collateral security.

Since the plaintiff is a bona fide third party, the defendant cannot oppose the plaintiff with the invalidity of the false agreement between the non-party 2 and the non-party 1.

B. Summary of the defendant's assertion

The provisional registration in the name of Nonparty 1 with respect to the instant real estate was based on a false conspiracy between Nonparty 2 and Nonparty 2. Therefore, provisional registration in the name of Nonparty 1 and the principal registration based thereon should be cancelled due to the invalidity of cause. Since the registration in the name of the Plaintiff is also invalid, the registration in the name of the Plaintiff based thereon cannot be claimed for the cancellation of

In addition, at the time of lending KRW 30 million, which is the secured debt of the instant mortgage to Nonparty 6, the Defendant and Nonparty 6 agreed to repay KRW 30 million when selling the instant real estate. Since the instant real estate has not yet been sold, the Defendant and Nonparty 6 did not have due date for the repayment of the obligation.

3. Determination

A. Whether a person can oppose the plaintiff with a false declaration of conspiracy

According to Article 108 of the Civil Act, a declaration of intention made in collusion with the other party is null and void, and any person may assert the invalidation thereof. However, with respect to a third party in good faith who has been in good faith and who has a substantial legal interest based on the legal relationship formed by a false indication as a person other than the party of a false indication and the general successor, not only the party of the false indication but also any person, who has entered into a new legal interest, does not oppose the invalidity of the false indication, and therefore, in relation to a third party in good faith, the false indication is also effective as indicated (see Supreme Court Decision 94Da12074 delivered on April 26,

As seen earlier, after Nonparty 1 completed principal registration based on provisional registration, Nonparty 3 and Nonparty 4 with respect to the instant real estate on February 13, 2018, the Plaintiff completed a share transfer registration based on the purchase and sale on February 13, 2018. As such, the Plaintiff was a person who has a new legal interest based on the legal relationship formed by provisional registration based on the false agreement between Nonparty 1 and Nonparty 2. Therefore, there is no evidence to acknowledge that the Plaintiff is maliciously bad faith, and the Defendant cannot claim that the Plaintiff, a third party in good faith, who is a third party, is invalid.

Therefore, the plaintiff's transfer registration of equity in this case is valid in relation to the defendant.

B. Whether the statute of limitations expired

Since there is no evidence to prove that the Defendant and Nonparty 6 agreed to pay KRW 30 million upon the sale of the instant real estate between the Defendant and Nonparty 6, the secured debt of the instant right to collateral of this case shall begin to run from the time it is possible to claim the above credit, and the extinctive prescription shall begin to run from the time it is possible to claim the above credit. The above credit could have been claimed at the latest on July 22, 1998, which is the registration date of the right to collateral of this case. Since it is apparent that the 10th anniversary of the filing date of the instant lawsuit, the secured debt of the instant right to collateral of this case has expired due to the expiration of the extinctive prescription. Accordingly, it is reasonable to deem that the Defendant had the obligation to cancel the instant secured claim on

4. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Lee Tae-woo

(1) The Plaintiff is indicated in the Plaintiff’s complaint as the Plaintiff’s share, but it is evident that the Plaintiff refers to Nonparty 2’s share.