Where the cancellation of a provisional registration is not indicated in the certificate of right to a provisional registration, the provisional registration shall not be deemed lawful.

Where the cancellation of a provisional registration is not indicated in the certificate of right to a provisional registration, the provisional registration shall not be deemed lawful.

Article 67 (2) of the Registration of Real Estate Act

[Judgment of the court below]

Defendant 1 and two others

Defendant 4 and supplementary intervenor Defendants et al., Counsel for the defendant-appellant-appellee and two others

Seoul High Court Decision 80Na2917, 2918 decided March 23, 1981

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal No. 2 are examined.

According to the judgment of the court below, according to the witness testimony of the court below and the record verification of the court of first instance, the plaintiff holds a provisional registration right certificate and registration certificate concerning the real estate of this case. The termination certificate used for the cancellation registration of the above provisional registration and the plaintiff's seal which is pressured on the power of attorney are different from the plaintiff's seal impression, and the plaintiff did not directly deliver documents necessary for the cancellation registration of the above provisional registration to the judicial scrivener who handled the above provisional registration of this case, but it is difficult to conclude that the above facts alone are forged with the certificate of power of attorney for provisional registration used for the cancellation registration of the provisional registration of this case, and it is hard to conclude that the above facts were forged, and there is no other evidence to support that the cancellation registration of the provisional registration of this case was made without title. Further, even if the defendant 4 purchased the real estate of this case from the non-party 5 (the co-defendant 1), the defendant 2, the defendant 3 and the defendant 1, and the plaintiff's agent's name and the above documents related to the above defendant 3 and the defendant 4.

According to Article 40 (1) 3 of the Registration of Real Estate Act, the certificate of completion of registration concerning the right of the person liable for registration is stipulated in writing as necessary for the application for registration. According to Article 49 of the same Act, where the certificate of completion of registration concerning the right of the person liable for registration is destroyed or lost, two copies of a document which guarantees that the person liable for registration is the person liable for registration shall be attached to the application, and according to Article 67 (2) of the same Act, the certificate of completion of registration attached to the application or one copy of a document mentioned in Article 49 must be stated in the date of receipt of the application, receipt number, priority number, name or title of the person liable for registration, address, reason for registration, date of registration, purpose and purpose of registration and return the certificate to the person liable for registration, and according to Article 40 (1) 169 of the same Act, the case holding that the former certificate of completion of registration should be stated in the application number (registration certificate attached to the application form), receipt number, priority number, purpose and purpose of registration, and the next day should be returned to the person liable for registration.

In addition, according to Gap evidence Nos. 10,11,12-1, and 12-1, each of the above provisional registration of this case (cancellation of provisional registration of this case), the application for cancellation of provisional registration of this case was accompanied by one copy of registration certificate concerning the right of the person liable to cancel provisional registration other than one copy of proxy certificate and one copy of termination certificate, and there is no dispute over establishment, and in particular, according to Gap evidence Nos. 5-1, 6-1, 7-1, 3, and 8-1 through 3 (certificate of provisional registration of this case), the court below rejected the plaintiff's request for cancellation of provisional registration of this case without any error of law since the plaintiff's certificate of registration of the person liable to cancel provisional registration of this case was attached to the above provisional registration of this case, and it was hard for the court below to find that the court below erred by misapprehending the legal principles as to the plaintiff's right to request cancellation of provisional registration of this case without any error of law.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court which is the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)