Cancellation, etc. of Ownership Registration

The defendant Republic of Korea is not based on the trade reservation cancelled, but on the basis of the principal registration which was invalidated based on the provisional registration already invalidated by the cancellation of the trade reservation, and thus, cannot be deemed as a third party in the cancelled trade reservation.

Civil Code § 548 (Effect of Rescission and Duty of Restoration)

2017Na59460

AA

Republic of Korea and 2

April 12, 2018

May 3, 2018

1. All appeals filed by the Defendant (Counterclaim Plaintiff) and the Defendant Republic of Korea and DD are dismissed.

2. The counterclaim of the Defendant (Counterclaim Plaintiff) brought at the trial is dismissed;

3. The costs of appeal as to the principal lawsuit are borne by the Defendant (Counterclaim Plaintiff) CCC, Defendant Republic of Korea, and DD, and the costs of appeal as to the counterclaim are borne by the Defendant (Counterclaim Plaintiff) CCC.

the Gu Office's place of service and place of service

1. Purport of claim

(a) Main claim;

With respect to the buildings listed in the separate sheet to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”), the Co-Defendant EEE Co-Defendant EE Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co., Ltd. (hereinafter referred to as the “EEE”) of the first instance court performed the procedure for cancellation registration of ownership transfer registration completed on December 30, 201 by the registration office of the branch court of Sungwon District Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co., Ltd. (hereinafter referred to as the “Seoul Metropolitan Government”) Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co-Defendant Co., Ltd. (hereinafter referred to as

(b) Counterclaim;

The plaintiff shall pay to the defendant CCC 15% interest per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment (the defendant CCC filed a counterclaim at the trial).

2. Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked. The Plaintiff’s claim against the Defendants is dismissed in entirety.

1. Basic facts

A. BB completed the provisional registration of the right to claim ownership transfer registration (hereinafter referred to as BB’s provisional registration) on January 21, 201, No. 3722 of Suwon District Court’s Sung-nam branch office for the establishment of the building listed in the separate sheet owned by the Plaintiff (hereinafter referred to as “instant building”).

B. On April 5, 2011, BB issued a certificate of cancellation that the said purchase and sale reservation and provisional registration will be cancelled to the Plaintiff. Nevertheless, BB completed the transfer registration of ownership based on the said provisional registration as of April 18, 201, as of February 5, 201, under Article 26454 of the same registry office (hereinafter referred to as “BB transfer registration”) on the ground of sale as of February 5, 201 based on the foregoing provisional registration (hereinafter referred to as “BB transfer registration”).

C. As to the instant building, which was registered as owned by BB, Defendant CCC completed the registration of creation of a collateral security (hereinafter “registration of creation of a collateral security”) with the maximum amount of debt 45,000,000 won, and the debtor BB, based on the contract concluded on May 24, 2011 by the same registry office No. 35106, May 24, 201.

D. After that, EE completed the registration of transfer of ownership (hereinafter “instant transfer of ownership”) based on sale and purchase as of December 30, 201 of the same registry office as of December 30, 201, No. 84565, Dec. 30, 201 with respect to the instant building, and based on a tax claim regarding the instant building, Defendant Republic of Korea completed the seizure of the instant building as of July 1, 2014 as of June 30, 201, as of June 30, 2014, the Seoul Special Metropolitan City Jung-gu was received as of October 15, 2014 as of October 15, 201, and Defendant DD as of February 10, 2015 as of March 11079, 2015, and as of March 31, 2015, the seizure registration was completed as of March 31, 2015.

E. On July 18, 2013, the Plaintiff filed a lawsuit against BB seeking the implementation of the procedures for the provisional registration and the cancellation of ownership transfer registration of BB relating to the instant building (U.S. District Court Decision 201Da27232, Suwon District Court Decision 2013Na3263) and received the judgment in favor of the Plaintiff on July 18, 2013. Although BB appealed appealed, the appeal by BB was dismissed on July 22, 2016, and the said judgment became final and conclusive on August 25, 2016. Since the content of the said judgment was cancelled by the declaration of intent of cancellation of BB on January 20, 2011, the provisional registration of BB should be cancelled, and the registration of ownership transfer of BB, which was made by BB due to the cancellation of the provisional registration, should also be cancelled.

[Reasons for Recognition] Facts without dispute, entry of Gap evidence 1 to 4 (including each number), the purport of the whole pleadings

2. Determination on the main claim

A. Determination on the cause of the claim

According to the above facts, the registration of transfer of ownership of BB on the building of this case was based on the provisional registration to be cancelled due to the cancellation of the purchase and sale reservation, and thus, the registration of transfer of ownership of this case by Defendant CCC based on the registration of transfer of ownership is also a registration of cancellation of the cause of the attachment of Defendant EE, EE’s transfer of ownership of this case, Defendant Republic of Korea, DD and Jung-gu Seoul Metropolitan Government.

Therefore, with respect to the building of this case, EE is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case, and Defendant Republic of Korea, DD and Jung-gu Seoul Special Metropolitan City are obligated to express their consent with respect to the above cancellation registration, and Defendant CCC is obligated to implement the procedure for registration of cancellation of ownership transfer registration of this case.

B. Determination as to the defendants' assertion

1) The Defendants asserted that the pre-sale agreement between the Plaintiff and BB on January 20, 201 was cancelled by the declaration of intent of BB’s cancellation on April 5, 2011, and that Defendant CCC completed the registration of the establishment of the neighboring mortgage of the instant building, Defendant Korea, and DD each of the seizure registrations, and that the Defendants were unaware of the aforementioned cancellation. Therefore, the Defendants constitute a third party as stipulated in the proviso of Article 548(1) of the Civil Act, and therefore, the Plaintiff did not infringe the Defendants’ rights as third party upon the cancellation of the pre-sale agreement.

However, as seen earlier, the Defendants did not make a pre-sale agreement as of January 20, 201, but rather came to have legal relations by completing the registration of the establishment of the instant mortgage and the registration of each seizure based on the registration of the ownership transfer of BB, which is null and void based on the ground that the cancellation of the pre-sale agreement should be cancelled, and thus, the Defendants cannot be deemed as the third party of the pre-sale agreement cancelled under the proviso of Article 548(1) of the Civil Act. Therefore, the Defendants’ aforementioned assertion is without merit.

2) Defendant CCC and DD asserted to the effect that the document of cancellation on April 5, 2011 between the Plaintiff and BB included a comprehensive declaration of intent to cancel the contract on February 5, 201 between the Plaintiff and BB, or that the subject of cancellation according to the certificate of cancellation was the sales contract on February 5, 2011, and that the contract between the Plaintiff and BB was cancelled on February 5, 2011 according to the certificate of cancellation. Thus, the said Defendants are third parties as stipulated in the proviso of Article 548(1) of the Civil Act.

However, the BB’s certificate of cancellation on April 5, 201 is the content that the BB would cancel the pre-sale agreement and the provisional registration of BB on January 20, 2011. Unlike the content of the said certificate of cancellation, the said certificate includes the declaration of intent to cancel the sales contract on February 5, 201, or the subject of the said certificate of cancellation is not a sales contract as of February 5, 201, and therefore, the said Defendants’ assertion on the premise thereof is without merit.

3. Determination as to the counterclaim claim filed by Defendant CCC at the trial

Defendant CCC prepared a preliminary counterclaim against the Plaintiff on April 5, 201 in preparation for the case where the Plaintiff’s main claim was accepted at the trial. Around January 201, 201, the Plaintiff was negligent in cancelling the above provisional registration, and the Plaintiff neglected to recover documents necessary for the registration of transfer of ownership. Based on the Plaintiff’s gross negligence, Defendant CCC trusted the principal registration based on the provisional registration under the circumstance that it was unaware of the above purchase and sale reservation and cancellation of provisional registration, and lent KRW 350 million to BB on May 24, 2011, and then, the Plaintiff was liable to compensate the Plaintiff for damages incurred by Defendant CCC, and the Plaintiff claimed compensation for damages incurred by Defendant CCC.

ex officio, we examine the legitimacy of the counterclaim of this case.

A counterclaim at an appellate court may be lodged in cases where there is no possibility of undermining the interests of the other party in the instance pursuant to Article 412(1) of the Civil Procedure Act or where consent of the other party is obtained. Here, “cases where there is no possibility of undermining the interests of the other party in the instance” refers to cases where the substantial issues constituting the foundation of a counterclaim claim are sufficiently examined in the first instance with respect to the cause of the principal claim or method of defense, and there is no concern that the other party may lose his/her interests in the instance of the first instance (see, e.g., Supreme Court Decisions 93Meu1051, 1068, May 10, 1994; 2005Da2064, 20071, Nov. 24, 2005); and also, pursuant to Article 412(2) of the Civil Procedure Act, where the other party has consented to the counterclaim without raising an objection.

In the instant case, not only difference between the principal claim and the counterclaim, but also the Plaintiff’s fault, which is a substantial issue of the counterclaim, and the amount of damages, was not sufficiently examined in the first instance court on the cause of the principal claim or method of defense. Therefore, it is likely to prejudice the interests of the Plaintiff’s instance. Since the Plaintiff did not have consented to the counterclaim, or did not present on the merits of the counterclaim without raising any objection, the counterclaim by Defendant CCC is unlawful as it fails to meet the requirements under Article 412 of the Civil Procedure Act.

4. Conclusion

Therefore, all of the plaintiff's claims against the defendants shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is justified, and all of the appeals by the defendants are dismissed on the grounds of its ground, and the counterclaim by the defendant CCC raised in the trial is dismissed on the grounds of its illegality.