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(영문) 서울중앙지방법원 2018.11.23 2018가단38070
가등기말소등기 절차 이행 청구의 소
Text

1. On July 19, 2016, Defendant B registered with the Seoul Central District Court on the real estate stated in the attached list to the Plaintiff.

Reasons

1. Facts of recognition;

A. On March 30, 2015, the Plaintiff completed the registration of ownership transfer with respect to the real estate listed in the separate sheet (hereinafter “instant real estate”).

On July 19, 2016, Defendant B completed the provisional registration of the right to claim ownership transfer (hereinafter “instant provisional registration”) as described in paragraph (1) of the Disposition No. 1 due to trade reservation on the same day.

B. On November 10, 2016, Defendant Republic of Korea completed the additional registration of the provisional registration of this case under Article 235162 at the same court’s receipt.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Both claims;

A. Since the Plaintiff’s provisional registration of this case was completed in the future of Defendant B is null and void due to a false declaration of conspiracy, Defendant B is obligated to implement the procedure for cancellation registration of the provisional registration of this case, and Defendant Republic of Korea, the execution creditor of the provisional registration of this case, is obligated to express his/her consent regarding the procedure for cancellation registration of the provisional registration of this case

B. (1) The Defendants (1) borrowed money from the Plaintiff at the time of the provisional registration of Defendant B, but did not cancel the provisional registration of this case, and thus, the provisional registration of this case should be cancelled.

(2) Defendant Republic of Korea is a bona fide third party, and thus, the Plaintiff cannot oppose the Defendant Republic of Korea who is the execution creditor, and the Defendant Republic of Korea has no obligation to express his/her consent to the procedure for cancellation registration of the provisional registration of this case.

3. Determination

A. In full view of the fact that Defendant B did not disclose the specific details such as the Plaintiff’s loan amount and recognized the duty of cancelling the provisional registration of this case, it is reasonable to deem the provisional registration of this case as the registration of invalidity of cause caused by the false indication of agreement between the Plaintiff and the Defendant B. Therefore, Defendant B is obligated to implement the procedure of cancelling the provisional registration of this case to the Plaintiff.

B. A false declaration of intent made in collusion with the other party is null and void.

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