A. Whether there is a benefit to enforce the principal registration on the basis of the provisional registration in the event that ownership transfer registration has been made in the future for the subject matter of the provisional registration after the provisional registration was illegally cancelled

B. The case affirming the judgment of the court below which sentenced retirement due to an error in the case where the plaintiff's claim should be dismissed

A. In a case where the principal registration is made on the basis of the provisional registration, the order of the principal registration becomes retroactively to the time of the provisional registration, and the interim disposition, which was made on the basis of the principal registration after the provisional registration, becomes null and void to the lower order than the principal registration. Therefore, even if a person having the provisional registration receives the ownership transfer registration on the object of provisional registration, if there is an interim disposition, after the provisional registration,

B. Even if the court below rendered a judgment of retirement on a case where the plaintiff's claim should be dismissed, if only the plaintiff is dissatisfied with the judgment, the above judgment should be reversed and dismissed, and it should be maintained as it would result in disadvantage to the plaintiff.

A. Article 226 of the Civil Procedure Act

B. Supreme Court Decision 82Nu491 delivered on December 27, 1983

Plaintiff

Defendant 1 and five others

Seoul High Court Decision 85Na576 delivered on June 2, 1987

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal (the grounds of appeal for addition are examined to the extent of supplement in case of supplement in the grounds of appeal filed within the submission period).

1. According to the reasoning of the judgment below, on May 7, 1983, the court below acknowledged the provisional registration claim against Defendant 1, the remaining Defendants, the heir of Defendant 1, the deceased non-party 1, and the non-party 2 as follows: the above non-party paid KRW 68,00,000 to Defendant 1 for the purchase price of the instant land; the above non-party waives his claim for refund of KRW 38,00,000,00 before the above deceased paid the purchase price to the above deceased; Defendant 1 completed the provisional registration claim against the non-party 2 or the above building after completion of the above apartment in his name for convenience; the remaining Defendants and the above non-party 1 did not dispute the above defendants and the above non-party 1 without executing the judgment; and Defendant 1 renounced his claim for provisional registration without proceeding to enforce the judgment; in light of the facts that the above apartment was completed under the name of the non-party 2 and the records, it did not err in the misapprehension of ownership transfer or the above evidence.

2. According to the reasoning of the judgment below, the court below rejected the plaintiff's lawsuit against the defendant 2, 3, 4, 5, and 6 on June 14, 1978 on the ground of provisional registration made on June 17, 1978 with respect to the real estate of this case at the original time on the basis of the right to claim ownership transfer transfer registration based on the purchase and sale reservation made on the ground of preservation of the right to claim ownership transfer registration under the provisional registration, which was made on June 17, 1978.

However, when the principal registration is made on the basis of the provisional registration, the order of priority of the principal registration becomes retroactively to the time of the provisional registration, and the interim disposition made on the basis of the principal registration becomes null and void, so even if the provisional registration holder receives the ownership transfer registration on the object of provisional registration, if there is an interim disposition before the ownership transfer registration after the provisional registration, the provisional registration holder has interest in the claim for the principal registration on the basis

According to the decision of the court below, the provisional registration made on June 17, 1978 with respect to the real estate in this case on the original form was illegally cancelled by the deceased non-party 1 on March 16, 1981, and the provisional registration made on May 3, 1981 was made in the non-party 2's name as of May 3, 1981, and the ownership transfer registration was made in the name of defendant 1 on July 22, 1983. Thus, the defendant 1 can invalidate the provisional registration in the name of non-party 2, which is the interim disposition, by making the provisional registration in his name and the principal registration based on the provisional registration. Thus, the defendant 1 has a benefit to seek the principal registration based on the provisional registration in his name.

Meanwhile, Defendant 1, the heir of the deceased non-party 1 on May 7, 1983, agreed to waive the right to claim a provisional registration under Defendant 1’s name cancelled between the Defendants and the non-party 2, and thus, it is apparent that the registration of recovery of provisional registration under Defendant 1’s name can not be realized. Thus, the Plaintiff’s claim against Defendant 2, etc. seeking the implementation of the principal registration procedure based on the provisional registration is without merit, on the premise that the provisional registration is realized.

Although the plaintiff's objection suit against the defendant 2 et al. is an interest in the lawsuit, the judgment of the court below that there is no interest in the lawsuit is erroneous in the misapprehension of legal principles as to the interest in the lawsuit. However, as seen earlier, in this case where the plaintiff's claim against the defendant 2 et al. against the defendant 2 et al. is not justified, the judgment of the court below's rejection of the lawsuit is reversed and dismissed, and the

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Song Man-Ba (Presiding Justice)