In cases where a principal registration based on provisional registration for security has been made in violation of Articles 3 and 4 of the Provisional Registration Security Act, in violation of the provisional registration for security, etc., the validity of the principal registration (Invalidity) and in such a case where the principal registration, which is null and void, can be a valid registration consistent with the substantive legal relations, in a case where a decision of recommending a compromise with the purport of implementing the principal registration based on provisional registration after the completion of the principal registration null and void in violation of the above provision becomes final and conclusive, whether the validity of the principal registration may be asserted as a valid registration that conforms to the substantive relations (negative in principle) solely on the basis that

In light of the provisions of Articles 3 and 4 of the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”), in cases where the principal registration based on provisional registration has been made in violation of each of the above provisions, this registration shall be null and void: Provided, That in cases where a person holding a provisional registration notifies an obligor, etc. of the appraised value of liquidation money according to the procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, and there is no liquidation money to pay or pay it to an obligor, this registration may only be a valid registration that conforms to the substantive legal relations for two months after the date when the obligor is notified.

Therefore, even if a decision of recommending a compromise has become final and conclusive with the purport of implementing the principal registration based on provisional registration after the completion of the principal registration in violation of the provisions of the Provisional Registration Security Act, the mere fact that a decision of recommending a compromise as above is a decision of recommending a compromise, barring any special circumstance to deem the content of the decision of recommending a compromise as substitute for the liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, cannot be asserted as a valid registration that conforms to the substantive relationship. Furthermore, even if the principal registration is completed based on the decision of recommending a compromise, the principal registration is still null and void because it has been made in violation of

Articles 3 and 4 of the Provisional Registration Security Act

Supreme Court Decision 2009Da90160 Decided August 19, 2010

Plaintiff 1 and one other (Attorney Yellow-gu, Counsel for the plaintiff-appellant)

Defendant

Defendant joining the Defendant (Attorney Choi-hoon et al., Counsel for the defendant-appellant)

Busan High Court Decision 2015Na3303 decided June 15, 2016

The appeal is dismissed. The costs of appeal are assessed against the Defendant joining the Defendant.

The grounds of appeal are examined.

1. As to the main defense

According to the reasoning of the judgment below, the court below rejected the defendant's main defense that the plaintiffs' primary claim based on the subrogation right is unlawful, since the plaintiffs' claims against the deceased non-party exist by integrating the adopted evidences.

In light of the relevant legal principles and records, the above judgment of the court below is just. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the settlement of construction contract contracts or by failing to exhaust all necessary deliberations, thereby exceeding the bounds of the principle of free evaluation of evidence against logical

2. As to the assertion that invalidation is not registered

According to the reasoning of the judgment below, after compiling the adopted evidence, the court below acknowledged the facts as stated in the judgment, and determined that the additional registration of the provisional registration of this case was completed in the name of the defendant in accordance with the purpose of tax evasion, etc., and it does not constitute an exception provision under Article 8 subparagraph 2 of the Act on the Registration of Real Estate under Actual Titleholder's Name, and thus, the provisional registration of this case is null and void. In addition, the provisional registration of this case is a provisional registration for security subject to the Provisional Registration Security Act (hereinafter "Provisional Registration Security Act"), and the registration of

In light of the relevant legal principles and records, the above judgment of the court below is justifiable. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the relevant legal principles

3. As to the assertion that registration is valid in accordance with substantive relations

A. In light of the provisions of Articles 3 and 4 of the Provisional Registration Security Act, in a case where the principal registration based on the provisional registration for security has been made in violation of the above provisions, the principal registration shall be deemed null and void: Provided, That in a case where a person having a right to provisional registration notifies an obligor, etc. of the appraised value of the liquidation amount pursuant to the procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, and there is no liquidation amount paid or no liquidation amount to be paid to an obligor, the said invalid registration may only be a valid registration that conforms to the substantive legal relations after the period of liquidation for two months from the date the obligor receives such notification (see Supreme Court Decision 2009Da90160, Aug. 19,

Therefore, even if a decision of recommending a compromise has become final and conclusive with the purport of implementing the principal registration based on provisional registration after the completion of the principal registration in violation of the provisions of the Provisional Registration Security Act, the mere fact that there is a decision of recommending a compromise as above is a decision of recommending a compromise, barring any special circumstance to regard the contents of the decision of recommending a compromise as substitute for the liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, cannot claim that the null and void principal registration is a valid registration consistent with the substantive relationship. Furthermore, even if the principal registration is completed based on the decision of recommending a compromise, this registration is still made in violation of the above provisions of

B. Although there are some inappropriate points in this part of the judgment of the court below, the decision of the court below which rejected the defendant's defense that the principal registration of this case is valid in accordance with the substantive relations is just in its conclusion. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the validity of the decision of recommending a compromise, the time when the creditor's right of revocation is established, the effective registration consistent with the substantive relations

4. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the defendant joining the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)