(a) Validity of a provisional registration of restoration made without attaching a written consent of the requester for auction;

B. Whether there exists a benefit of lawsuit seeking restoration of the cancelled registration ex officio upon the completion of a principal registration based on the provisional registration (negative)

A. In applying for a registration of recovery of provisional registration, if there is no written consent of the requester for auction or any certified copy of a trial capable of setting up against it at the time of the application, the registration of recovery shall be deemed null and void in relation to the above requester for auction. Therefore, the registration of recovery of provisional registration cannot be a cause to impede the validity of the auction procedure or auction. Thus, even if the principal registration of ownership transfer based on the above provisional registration has been completed, the acquisition of ownership by the successful bidder cannot be denied.

B. In a case where a registry official cancels a registration of ownership transfer of a third party which was made ex officio after a provisional registration due to the principal registration of ownership transfer on the basis of a provisional registration, if the principal registration based on the provisional registration or the provisional registration is cancelled after the cancellation, then the registration of ownership transfer of the third party should be cancelled after the provisional registration or the principal registration based on the provisional registration. Thus, the registration of ownership transfer of the third party should be cancelled ex officio, and there is no benefit

(a) Article 75 of the Registration of Real Estate Act;

Supreme Court Decision 79Da1575 Decided July 22, 1980, 81Da2329, 2330 Decided January 26, 1982

Plaintiff

Defendant

Seoul High Court Decision 82Na165 delivered on June 8, 1982

Of the judgment of the court below, the part of the case shall be reversed and remanded to the Seoul High Court on October 26, 1979, which dismissed the provisional registration of the right to claim transfer of ownership No. 47795, Oct. 18, 197, the right to claim transfer of ownership No. 477795, the right to claim the cancellation of the principal registration of the right to claim transfer of ownership No. 36680, Oct. 29, 1981.

The plaintiff's remaining appeals are dismissed.

The costs of appeal by the dismissal of an appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. The judgment of the court below held that since the above real estate was owned by Nonparty 1, the above real estate was not registered by the above non-party 1, and since the provisional registration of the defendant was made to preserve the right to claim ownership transfer under the Seoul Northern District Court Law No. 4795 on October 18, 1977, and the provisional registration was completed under the above Law No. 4532 on January 31, 1978, the above registry office's receipt of the above registry office No. 2634 on August 13, 1979, the above court's decision that the above provisional registration was not registered by the defendant on the ground that the above provisional registration was revoked by the court's receipt of the above provisional registration was not a provisional registration, but a copy of the above provisional registration, which was revoked by the defendant on the ground that the above provisional registration was not a valid one by the plaintiff 2, the above court's acceptance of the above plaintiff's right to claim for the cancellation of ownership transfer on the ground of the above provisional registration No. 3529/297.

2. According to the provisions of Article 75 of the Registration of Real Estate Act, where an application for restoration of a cancelled registration is filed and a third party who has an interest in the registration exists, a written consent or a certified copy of the trial capable of setting up against it shall be attached to the application. Thus, a registration not meeting such requirements shall be null and void in relation to a third party who has an interest in the registration (see Supreme Court Decision 79Da1575 delivered on July 22, 1980). Thus, if the defendant applied for the above restoration registration without a written consent of a national bank, a right holder of a request for auction, which is a right holder of a right to the above provisional registration, or a certified copy of the trial capable of setting up against it, the above provisional registration shall not be deemed null and void in relation to the above national bank, and therefore, the defendant cannot set up against the validity of the above provisional registration with respect to the above auction procedure, even if the principal registration based on ownership transfer is completed with respect to the same auction procedure, it shall not be deemed null and void in relation to the successful bidder.

As in the judgment of the court below, the above recovery registration becomes null and void, but if it can be asserted against the plaintiff who made a registration of acquisition of ownership due to a successful bid after the registration of recovery, the creditor bank which filed an application for auction can obtain satisfaction of claims with proceeds from a successful bid without any defect in relation to the defendant, while the plaintiff may not take this opinion because unreasonable result which denies the acquisition of ownership of the auction real estate due to a successful bid occurs, which results in a situation that differs in the validity of the same auction procedure.

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the validity of the restoration registration. In this regard, the part of the judgment of the court below which rejected the plaintiff's claim seeking cancellation of the above restoration registration and the transfer of ownership based on the provisional registration, shall not be reversed as it is unlawful.

3. Where a registry official cancels a registration of transfer of ownership by a third party which was made ex officio after a provisional registration due to the principal registration of transfer of ownership on the basis of a provisional registration, and the registration of transfer of ownership by a third party which was made after a provisional registration is made ex officio, if such cancellation is made after the provisional registration or the principal registration based on such provisional registration becomes invalid, the registration of transfer of ownership by the third party is eventually cancelled. In this case, the registry official is required to make a registration of cancellation ex officio (see Supreme Court Decision 80Da2329, 2330 delivered on January 26, 1982). Thus, it is interpreted that there is no benefit in filing a registration of cancellation. Accordingly, the court below's dismissal of the Plaintiff's claim for the portion of seeking a registration of restoration under Articles 22931 and 23739 of the receipt

Therefore, the part of the judgment of the court below which dismissed the plaintiff's claim is reversed and remanded, and the remaining plaintiff's appeal is dismissed as it is without merit, and the costs of appeal to the dismissed part are assessed against the losing party. It is so decided as per Disposition

Justices Jeon Soo-hee (Presiding Justice)