[1] The case where litigation for confirmation is permitted

[2] In a case where Byung corporation, which completed the provisional attachment registration for the above real estate after the provisional attachment registration for Eul's ownership transfer registration for the real estate was completed, sought confirmation of whether the above provisional registration was a provisional registration for security purpose, the case holding that Byung corporation's claim was a benefit of confirmation, even though it cannot be deemed that there was any uncertainty and risk in the legal status of Byung corporation, and there was no other remedy except for the judgment of confirmation as the provisional attachment registration for security

[1] The lawsuit for confirmation is permitted when there is infinite and danger in the Plaintiff’s rights or legal status, and the judgment of confirmation is the most effective and appropriate means to resolve the dispute.

[2] In a case where Byung corporation, which completed the provisional attachment registration for the above real estate after the provisional attachment registration for Eul was completed, sought confirmation as to whether the above provisional attachment is a provisional registration for security purpose, the case holding that Byung corporation's claim is erroneous in the misapprehension of legal principles in holding that Byung corporation's claim is a benefit of confirmation, since the cancellation of the provisional attachment registration ex officio pursuant to Article 92 (1) of the Registration of Real Estate Act is not determined by whether the above provisional registration is a provisional registration for the purpose of preserving priority or a provisional registration for security, and if Eul completed the principal registration without following liquidation procedure even though the above provisional registration was a provisional registration for security, Byung may seek cancellation of the principal registration by subrogation Gap, and thus the above provisional attachment registration can also be restored. Thus, since the provisional attachment registration for the above real estate is confirmed, it is difficult to view that Byung corporation's claim is a benefit of confirmation.

[1] Article 250 of the Civil Procedure Act / [2] Article 250 of the Civil Procedure Act, Article 92 (1) of the Registration of Real Estate Act, Article 2 subparagraph 3 of the Provisional Registration Security Act

[1] Supreme Court Decision 97Da54024 delivered on September 17, 1999 (Gong1999Ha, 2170) Supreme Court Decision 2001Da25078 delivered on June 28, 2002 (Gong2002Ha, 1794)

Trams Co., Ltd. (Law Firm D.L.S., Attorneys Lee Lee-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Hanyang, Attorneys Cho Jong-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na60642 decided April 11, 2014

The part of the judgment of the court below regarding the preliminary claim against Defendant 2 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1’s appeal is dismissed. The costs of appeal against Defendant 1 are assessed against the above Defendant.

1. We examine Defendant 1’s grounds of appeal.

Based on the circumstances indicated in its holding, the court below held that the above defendant 1 should pay to the plaintiff the amount of 385,635,938 won agreed upon under each of the instant notes and the damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the day following the day when the copy of the instant complaint was delivered to the above defendant to the day of full payment, since it is reasonable to interpret that the above defendant would be legally liable for damages to the plaintiff due to the bill of this case issued by the plaintiff.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to Article 3(2) of the Act on Special Cases Concerning Setoff, etc. of Legal Proceedings.

2. The first preliminary claim against Defendant 2 is examined ex officio.

A. The lawsuit for confirmation is permitted when the plaintiff's right or legal status is in danger and the obtaining of a judgment of confirmation is the most effective and appropriate means of resolution of the dispute (see Supreme Court Decisions 97Da54024 delivered on September 17, 1999; 2001Da25078 delivered on June 28, 2002, etc.).

B. The lower court determined that, inasmuch as the instant provisional registration under Defendant 1’s name, which was completed on the instant real estate owned by Defendant 1, is deemed a provisional registration for security purpose to which the Provisional Registration Security Act applies, and it is determined whether the provisional registration of this case is a provisional registration for the purpose of preserving priority or a provisional registration for the purpose of security, and whether the registration of provisional attachment under the Plaintiff’s name, which was completed later, will be cancelled ex officio depending on whether the provisional registration of this case is a provisional registration for the purpose of preserving the order of priority, there is any apprehension of existence in the legal status of the Plaintiff, and there is no direct remedy for resolving such apprehension, and Defendant 2 also asserts that the provisional registration of this case was based on a legitimate trade reservation, the

C. However, Article 92(1) of the Registration of Real Estate Act provides, “When a registrar makes a principal registration based on a provisional registration, he/she shall cancel ex officio the registration that was made after the provisional registration and infringes on the right preserved by the provisional registration.” Therefore, regardless of whether the provisional registration is the object of security, if the principal registration is made, regardless of whether it is the object of security, the registration of provisional seizure after the provisional registration shall be cancelled. In other words, inasmuch as whether the provisional registration of this case is cancelled ex officio due to the principal registration based on the provisional registration of this case, it shall not be determined depending on whether it is a provisional registration for priority preservation or a provisional registration for security

In addition, if Defendant 2 completed the principal registration without following the liquidation procedure even though the provisional registration of this case was the provisional registration of security, the plaintiff can seek cancellation of the principal registration by subrogation of Defendant 1 and thereby recover the provisional registration of this case. Therefore, it is difficult to deem that there is no other remedy except for the judgment of confirmation of provisional registration of security.

Meanwhile, the Supreme Court precedents cited by the Plaintiff as the benefit of confirmation in the trial are different from the instant case, and thus, it is inappropriate to invoke the instant case.

Nevertheless, solely for the foregoing reasons, the lower court deemed the first preliminary claim as lawful, and subsequently deliberated on the merits, and omitted the determination on the second preliminary claim. In so doing, the lower court erred by misapprehending the legal doctrine on the interest in confirmation, thereby adversely affecting the conclusion of the judgment.

3. Therefore, without further proceeding to decide on Defendant 2’s grounds of appeal, the part concerning Defendant 2’s preliminary claim against Defendant 2 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1’s appeal is dismissed, and the cost of Defendant 1’s appeal is borne by the above Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)