[1] The case where the utility of the invalidated registration is allowed due to the extinguishment of the real relation

[2] In the case of registration of invalidation for which registration of preservation of ownership is to be cancelled, whether the claim for cancellation can be accepted even if the right to claim cancellation is not recognized to the person who seeks cancellation (negative)

[3] In a case where a transfer registration of ownership invalidation is completed in the name of a third party with respect to a co-owned real estate, whether one co-owner can seek the cancellation of the entire registration (affirmative), and whether the co-owner's assertion of ownership ownership of another co-owner externally constitutes the act of preserving the jointly-owned property (negative)

[4] In a case where one of the co-owners of real estate agrees to use a provisional registration invalidated with a third party and the registration of ownership transfer was made in sequence based on such provisional registration, the case holding that the other co-owners may not seek for the cancellation of the portion exceeding the share in his/her ownership

[5] The validity of the registration of transfer of ownership that purchased real estate with the belief of the registration of non-performing, the registration of establishment of a neighboring mortgage (negative), and whether a successful bidder in the voluntary auction procedure conducted based on the right to collateral security can acquire the ownership of the above real estate (negative)

[6] Whether there is a legal interest in seeking cancellation of already cancelled registration (negative)

[1] Article 186 of the Civil Code / [2] Article 186 of the Civil Code, Article 288 of the Civil Procedure Act / [3] Article 265 of the Civil Code / [4] Article 265 of the Civil Code / [5] Article 186 of the Civil Code / [6] Article 248 of the

[1] Supreme Court Decision 63Da583 decided Oct. 10, 1963 (No. 11-2, 184), Supreme Court Decision 2001Da2846 decided Dec. 6, 2002 (Gong2003, 302) / [2] Supreme Court Decision 98Da17831 decided Feb. 26, 199 (Gong199, 607), Supreme Court Decision 2008Da35128 decided Oct. 9, 2008 (Gong2008Ha, 1540) / [3] Supreme Court Decision 92Da52870 decided May 11, 1993 (Gong193Ha, 1993, 196Da163649 decided Oct. 36, 197; 2005Da1540 decided Oct. 16, 197

[Judgment of the court below]

Defendant 1 and three others

Defendant 2

Seoul High Court Decision 2005Na95336 decided September 27, 2006

Of the part against Defendant 2, the part of the lower judgment ordering the procedure for registration of cancellation as to the portion of 336.45/3304.1 portion is reversed, and that part of the case is remanded to the Seoul High Court. Of the lower judgment, the part against Defendant 3 and Defendant 4 is reversed, and that part of the lower judgment against the Plaintiff is revoked, and the lawsuit as to the corresponding part is dismissed. The Plaintiff’s appeal against Defendant 1, Defendant 2, and Defendant 5 and the remaining appeals against Defendant 2 are dismissed. The total cost of the lawsuit between the Plaintiff, Defendant 3, and Defendant 4 is double, and the remainder is borne by the said Defendants. The costs of appeal against Defendant 1 and Defendant 5 are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

A. As to the assertion regarding the violation of the rules of evidence regarding the declaration of full reservation

Examining the facts as a whole, the lower court determined that: (a) Nonparty 1 and Nonparty 2 did not enter into a pre-sale agreement with Nonparty 1 and Nonparty 1 and Defendant 3 and Defendant 10 (hereinafter referred to as “Defendant 3, etc.”) on December 31, 197; (b) on the 1979-10-6-6-6-6-6-6-6-2-6-2-6-2-6-2-7-7-7-7-7-7-7-7-77-77-77-77-77-77-77-77-77-77-77-777-777-777-77-777-77-77-77-777-77-777-77-777-777-777-777-777-777-777-777-777-777-77777

As long as the fact-finding and judgment of the court below are justified, this part of the remaining grounds of appeal by the defendant 2 corporation, which is premised on the recognition of the agenda for the conclusion of reservation pursuant to the above agreement, cannot be accepted.

The Supreme Court precedents asserted in this part of the grounds of appeal by Defendant 2 are inappropriate to be invoked in this case, contrary to this case.

B. As to the assertion of misapprehension of legal principles as to whether to allow the utilization of invalidation registration agreements

The usefulness of registration invalidated due to the extinguishment of a real relationship is allowed only in cases where there is no third party who has an interest in the registration before an agreement to use the registration has been reached (see Supreme Court Decisions 63Da583, Oct. 10, 1963; 2001Da2846, Dec. 6, 2002, etc.).

In the same purport, the court below is just in rejecting the above argument by the defendant 2 corporation on the ground that the plaintiff, who was well aware of the fact of the first provisional registration and the fact that the first provisional registration is to be revoked if the principal registration is completed due to a mutual agreement with the defendant 1 corporation and that if the first provisional registration is completed, the plaintiff, who was well aware of the fact that the first provisional registration is to be revoked, would not invoke the exclusion period even and his claim. The agreement to use the first provisional registration invalidated due to the extinguishment of a real relationship between the defendant 1 corporation and the third provisional registration between the defendant 1 corporation, which was invalidated prior to the conclusion of the agreement, is not valid in relation to a part of the share which had already been invalidated due to the completion of the registration of ownership transfer, and there is no illegality in the misapprehension of legal principles as argued in the Grounds for Appeal.

C. As to the assertion of misapprehension of legal principles as to the scope where the plaintiff can assert the invalidity of the utilization agreement of the first provisional registration

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its holding as to the valid shares of the second provisional registration, and determined that Defendant 2 Co., Ltd. has an obligation to additionally delete the shares of 336.45/304.1, which are deemed valid in the lower court, of the ownership transfer registration of Defendant 2 Co., Ltd., which was made in sequence based on the first provisional registration, to the Plaintiff, who had an interest in the registration by completing the registration of ownership transfer concerning some shares before the first provisional registration utilization agreement is reached.

However, such determination by the court below is difficult to accept for the following reasons.

If the Plaintiff seeks to cancel the registration of initial ownership completed in the name of the Defendant against the Defendant, he/she must first assert and prove that the Plaintiff had the title to request the cancellation thereof. If it is not recognized that the Plaintiff has such title, even if the registration of initial ownership in the name of the Defendant is invalid, the Plaintiff’s claim cannot be accepted (see Supreme Court Decision 98Da17831, Feb. 26, 199). One of the co-owners of real estate can seek the cancellation of the entire registration against the third party as an act of preservation of common property where the ownership invalidation is registered in the name of a third party (see Supreme Court Decision 92Da52870, May 11, 1993). However, the Plaintiff cannot seek the cancellation of the ownership registration against the third party as an act of provisional registration that infringes on the Plaintiff’s right to share of another co-owner’s external ownership and thus, constitutes a factual and legal act that maintains the ownership of the second co-owner’s common property and the ownership of the second co-owner’s share in excess of the ownership.

Therefore, the court below erred by misapprehending the legal principles as seen earlier, thereby affecting the conclusion of the judgment, which affected the conclusion of the judgment, by misapprehending the legal principles set forth in the court below.

C. As to the assertion of misapprehension of legal principles as to the validity of the successful bid in the real estate voluntary auction procedure

Inasmuch as the public trust is not recognized in the registration of real estate, where the registration of ownership transfer of real estate is a false registration, even if the registration of ownership transfer of real estate was acquired with the belief of such fraudulent registration and completed the registration of ownership transfer, the registration of ownership transfer of real estate cannot be deemed to have been acquired. If the registration of ownership transfer of real estate is null and void, barring special circumstances, the registration of ownership transfer of real estate is null and void, and even if the real estate was awarded at a voluntary auction procedure conducted on the basis of null and void mortgage, the ownership cannot be acquired (see Supreme Court Decisions 66Ma165, Jan. 23, 1967; 92Da1574, May 25, 199

In the same purport, the court below is just in holding that since the first provisional registration on the share of 1983/3304.1 among the land in this case and the principal registration on the part of Defendant 1 was invalid, even if Nonparty 5 believed the registration of Defendant 1 and purchased it and completed the registration of ownership transfer, the registration of ownership transfer cannot be deemed to have been acquired. If Nonparty 5's registration of ownership transfer is invalidated, the registration of ownership transfer based on the non-party 5 is null and void, barring special circumstances, and the registration of ownership transfer based on the non-party 5 cannot be deemed to have been acquired even if Defendant 2 was awarded a successful bid in the arbitrary auction procedure conducted on the basis of null and void mortgage, and there

The Supreme Court Decisions, etc. asserted in this part of the grounds of appeal by Defendant 2 are inappropriate to be invoked in this case, contrary to this case.

2. Plaintiff’s ground of appeal

A. As to the assertion regarding the expression of intent of full reservation and the violation of the rules of evidence on possession with autonomy

In light of the adopted evidence, the lower court: (a) determined as follows: (b) as long as the third party’s unemployment had agreed on May 17, 1982 to transfer the ownership of the said third party’s shares to the said third party, and thus, (c) concluded a pre-sale agreement on the 25 stores among the instant land in order to secure the obligation to refund rental deposits to the merchants; and (d) determined as follows: (a) as long as the first and fifth building and the second building, the rent deposit was returned by May 31, 1982, the said pre-sale agreement was rescinded; (b) the said pre-sale agreement was not made between the parties to the said pre-sale agreement and the third party to transfer the ownership of the said third party’s shares to the said third party; and (b) the ownership transfer registration was not made on May 21, 1982, which was equivalent to the ownership transfer registration of the said building and the third party’s claim to transfer the ownership of the said land; and (b) determined as follows.

B. Whether a lawsuit seeking cancellation of the second provisional registration already cancelled against Defendant 3 and Defendant 4 is lawful

The cancellation registration refers to a registration that is executed for the purpose of legally extinguishing the entire registration in a case where all the registered matters of a certain registration are inconsistent with the substantive relations in the original or latter place. Thus, there is no legal interest to seek cancellation of the registration already cancelled (see Supreme Court Decisions 2002Da57904, Jan. 10, 2003; 2004Da5044, Sept. 28, 2005, etc.).

According to the facts duly established by the court below, since the second provisional registration on the share of 1983/3304.1 of the land in this case is already cancelled, the plaintiff has no legal interest to seek cancellation of the second provisional registration on the share of this case, and therefore, the plaintiff should have dismissed this part of the lawsuit since there was no legal interest in the lawsuit, and thus, it was inappropriate to reject it. However, the court below erred by misapprehending the legal principles on the interest in the lawsuit.

3. Conclusion

Therefore, among the part against Defendant 2, the part of the lower judgment ordering the procedure for registration of cancellation as to the portion of 336.45/3304.1 portion of the case is reversed, and this part of the case is remanded to the lower court. The part against Defendant 3 and Defendant 4 among the lower judgment is reversed without further proceeding to decide on the remaining grounds of appeal. Since this part of the case is sufficient for the lower court to directly render a judgment, this part of the case is decided to be readable pursuant to Article 437 of the Civil Procedure Act. The first instance judgment as to this part is revoked, and the corresponding part of the case is dismissed. The Plaintiff’s appeal against Defendant 1, Defendant 2, and Defendant 5 and the remaining appeal against Defendant 2 are dismissed. The total costs of the lawsuit between the Plaintiff, Defendant 3, and Defendant 4 are doublely borne by the Plaintiff. The costs of appeal against Defendant 1 and Defendant 5 are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)