If a registration of cancellation is cancelled at the discretion of a registry official, the registration of restoration shall also be made ex officio.

Where a registration cancelled in the restoration of cancellation registration is cancelled at the discretion of a registry official or at the request of a court, that such restoration registration shall be made at the discretion of the registry official or at the request of the court.

Article 24 of the National Tax Collection Act

2018 Mada17192 Registration for Recovery from Cancellation of Provisional Registration

○ Kim

○○ and six others

June 12, 2019

July 10, 2019

1. Of the instant lawsuits, the part against Defendant ○○○, ○○○, ○○ Corporation, Korea, and ○ Bank Co., Ltd. shall be dismissed, respectively.

2. The Plaintiff’s claim against Defendant Gamb○, ○○ Housing Construction, and White○ is dismissed, respectively.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The defendant ○○○, on August 21, 2008, performed the procedure for cancellation registration of provisional registration completed on August 22, 2008 by the registration office of the ○○ District Court on August 22, 2008 with respect to the real estate listed in the separate sheet No. 1 list, and the remaining Defendants, on August 21, 2008, expressed their intention of each acceptance on the registration of cancellation of provisional registration completed on August 22, 2008 by the registration office of the ○○ District Court on August 22, 2008 with respect to the above real estate.

1. Facts of recognition;

The fact that the registration has been completed as shown in the attached Table 2 with respect to the real estate listed in the attached Table 1 (hereinafter referred to as the "real estate of this case") can be recognized by considering the overall purport of the pleadings in the entry in the attached Table 1-1 and 2.

2. The plaintiff's assertion

The plaintiff filed a lawsuit against ○○○○○○○○ District Court 000Kadan0000, and acquired ownership by winning a final judgment in favor of the plaintiff, but the provisional registration in the name of the plaintiff (hereinafter referred to as the "provisional registration of this case") was cancelled illegally, so the defendant head○○ was obligated to implement the procedure for the registration of recovery of provisional registration of this case cancelled to the plaintiff. The remaining defendants are third parties having interest in the registration that is likely to cause damage due to the restoration of provisional registration and are obligated to express their consent for the registration of recovery of cancellation of provisional registration of this case.

3. Determination

A. Determination as to whether a lawsuit against Defendant ○○○ is lawful

In a case where the former registration cancelled in the restoration of cancellation registration becomes a joint application, the registration of restoration shall be applied jointly. Thus, in principle, the person liable for registration may seek the implementation of the restoration registration procedure against the person liable for registration. However, in a case where the registration is cancelled ex officio or at the court’s commission, the registration of restoration should be made ex officio or at the court’s commission, so there is no benefit to seek the implementation of the restoration registration procedure of cancelled registration (see Supreme Court Decision 94Da27205, May 31, 1996).

According to the facts established above, the provisional registration of this case was cancelled at the auction procedure of ○○ District Court 000 Ma000 Ma000, and thus cancelled by the auction court as part of an execution act. Thus, the registration of recovery is also entrusted to the court, and there is no benefit in filing a lawsuit against the defendant ○○. Accordingly, the plaintiff's lawsuit against the defendant ○○○ does not have a benefit in filing a lawsuit.

B. Determination as to whether a lawsuit against Defendant ○ Insurance Corporation, Korea, or ○ Bank Corporation is lawful

The above defendants are not third parties with a duty to express their consent in the registration for the cancellation of cancellation.

The above defendants are a third party with interest in the registration, and the third party's "the third party's "the third party's "the party's " who has an interest in the registration for cancellation" under Article 59 of the Registration of Real Estate Act is likely to cause damage if the above defendants becomes a party with an interest in the registration for cancellation," and whether there is a "constition to cause damage" in this context shall not be determined at the time of acquisition of rights by the third party (the time of cancellation registration) but at the time of the above registration (see, e.g., Supreme Court Decision 89Meu5673, Jun. 26, 1990). Thus, according to the above facts, it can be known that the seizure of the above defendants' name or the establishment of a mortgage on the real estate of this case had already been cancelled, even if the cancellation registration for cancellation of the plaintiff's name was made, it is not likely to cause damage, and thus, it does not include a third party's relation in the above third party's registration claim against the defendants.

C. Determination as to the claim against Defendant Gamb○, ○○○, ○○ Housing Construction, and 000

Even in cases where a compulsory auction is implemented upon an application for a compulsory auction registered after the provisional registration with respect to a real estate for which a right to claim for registration of transfer of ownership is already registered after the provisional registration, if there exists a registration of establishment of a mortgage to be effective at the time of the auction by compulsory auction and to be extinguished by the auction, such provisional registration cannot be set up against a mortgage, and the right to be registered at the lower level than that extinguished by a compulsory auction is also extinguished. As such, the provisional registration is an entry of the burden on the real estate which a successful bidder under Article 61 (1) 2 of the Civil Procedure Act has not taken over, and it is subject to a request for cancellation. This is not only where the mortgagee who takes priority over the provisional registration after the commencement of compulsory auction and it is attached to the case where a senior mortgagee fails to make an application for voluntary auction, and it is all subject to cancellation since there is no reason to distinguish the case where the mortgagee has made such request for auction (see, e.g., Supreme Court Order 84Ma606, Feb. 111, 1980).

In light of the above legal principles, the registration of the establishment of a neighboring mortgage on July 28, 2008 with respect to the real estate in this case was completed, and the provisional registration in the name of the plaintiff was completed on August 21, 2008, and the provisional registration in the name of the plaintiff was completed on August 21, 2008. However, the above establishment registration of a neighboring mortgage was revoked on September 3, 2014 at the request of the court of execution, as recognized earlier. Since the above right to the provisional registration in this case, which is subordinate to the above right to the above right to collateral security, has become extinguished due to the sale by a compulsory auction in this case, the provisional registration is subject to entrustment for cancellation, as stipulated in Article 144(1)2 of the Civil Execution Act. Accordingly, since the registrar's cancellation of the provisional registration in this case is legitimate upon the request of the court of execution, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the part of the instant lawsuit against Defendant ○○○, Defendant ○○○, Korea, and ○ Bank Company is unlawful, and thus, it is dismissed, respectively. The claim against Defendant ○○○, Defendant ○○○, and Defendant ○○○ Housing Construction, and ○○○○ is dismissed as it is without merit. It is so decided as per Disposition.