In the event of an agreement on the intermediate omission registration, whether the intermediate buyer’s first seller’s right to claim ownership transfer registration ceases to exist (negative)

Even if there was an agreement on the intermediate omission registration, such agreement is not an objection between the parties even if the intermediate omission registration was omitted, and there was only such an agreement that would not affect the validity of the registration, and thus, the claim for the transfer registration of ownership by the intermediate buyer shall be extinguished, or the obligation of the first seller to transfer ownership to the buyer shall not be extinguished.

Article 186 of the Civil Act

[Plaintiff-Appellee] Defendant 1 and 1 other (Law Firm Han-sung, Attorneys Park Dong-young and 1 other, Counsel for plaintiff-appellee)

[Judgment of the court below]

Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant Kim Jong-hwan

Seoul High Court Decision 90Na38575 delivered on April 26, 1991

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

As to the Plaintiff’s ground of appeal

1. According to the reasoning of the judgment below, the court below: (a) comprehensively based on the facts without dispute and the evidence adopted; (b) agreed on November 13, 1986 between Nonparty 1, Defendant 2, and Defendant 3 to transfer the instant land to the construction cost; (c) purchased the said land from Nonparty 1 on December 23, 1986; (d) Defendant 3 completed the registration of ownership transfer on April 11, 198 with respect to the above land’s 659.17 shares on April 1, 198; and (e) did not complete the construction within the agreed period and did not complete the construction; (d) transferred the above construction to Nonparty 3 on April 11, 1988 and completed the remaining construction; and (e) transferred the ownership of the instant land from Nonparty 1 to Nonparty 3 on November 5, 1987 to Nonparty 1, 208; and (e) did not transfer the ownership transfer to Nonparty 1 during the said period to Nonparty 981 and the above 2.

In addition, the court below held that the above non-party 1 was not in the status of seeking the registration of ownership transfer against the defendant 2 and the defendant 3, and that the above non-party 1 did not pay the principal and interest of the loan to the defendant 2 and the non-party 3 despite the above defendants agreed to receive the transfer of the land in this case. In addition, with respect to the shares owned by the defendant 3, the above non-party 1 transferred the above non-party 3 directly to the non-party 3 if the non-party 1 did not pay the debt to the non-party 3, and that the non-party 1 transferred the shares owned by the defendant 2 to the non-party 2. The above non-party 1 did not have the status of seeking the registration of ownership transfer against the defendant

2. First, we examine the loan obligation of Nonparty 1 to Defendant 2 and the relationship between the Defendant’s above Nonparty 1 and the ownership transfer registration obligation of Nonparty 1.

According to the evidence adopted by the court below, the above non-party 1 borrowed a total of KRW 4,970,00 from Defendant 2 before entering into the instant construction contract, and the above non-party 1 agreed on February 21, 198 to settle the principal and interest of the above loan at the time of acquiring the instant land against the above defendant on February 21, 198. However, it cannot be deemed that the above non-party 1 decided to perform the loan obligation against the above defendant prior to the performance of the duty to transfer ownership, and there is no other evidence to acknowledge such fact. Rather, it is reasonable to view the above non-party 1 as an agreement for simultaneous performance.

The court below recognized that the above non-party 1's loan debt against the above non-party 1 was agreed to perform more preferentially than the above defendant's obligation to transfer ownership to the non-party 1, and judged that the non-party 1 was not in the status to claim the registration of ownership transfer against the above defendant since the non-party 1 did not perform his obligation, it is erroneous in the misapprehension of facts against the rules of

3. Next, the right to claim for ownership transfer registration against the defendant 2 by the non-party 1 is transferred to the non-party 2, and the status of the above non-party 1 is examined as follows.

In full view of the statements in Eul evidence Nos. 2 (written confirmation), Eul evidence Nos. 23-1 through 23 (real estate sales contract, power of attorney) and the testimony of non-party 2 of the original trial witness, and the results of personal examination on defendant 2, among the adopted evidence of the court below, non-party 2 is obligated to register the ownership of the land in this case from the defendant 2 on Nov. 5, 1987 to the non-party 1, and upon receipt of a written confirmation from the above non-party 2 and the non-party 1 to transfer the land in the presence of the above non-party 2 and the non-party 1 when transferring the ownership after division, the court below concluded a sales contract with the above non-party 1 to determine the price for the share as KRW 2.5 million, and the non-party 1 delegated the power of attorney to the above non-party 2 on Aug. 5, 198 to the above non-party 2.

According to these facts, it is reasonable to view that the above non-party 1 sold shares owned by the defendant 2 among the land in this case to the plaintiff, and then sold them again to the non-party 2, and that the above defendant was delegated with the intermediate omission registration, which was made to allow the above defendant 1 to complete the registration of ownership transfer immediately in the future of the non-party 2.

However, even if there was an agreement on the intermediate omission registration, such agreement is not an objection between the parties even if the intermediate omission registration is omitted, and it is meaningful that such agreement will not affect the validity of the registration, and it does not terminate the claim of the intermediate buyer for the transfer registration of ownership, or terminate the obligation of the first seller for the transfer registration of ownership to the buyer (see Supreme Court Decisions 64Da1742, Mar. 23, 1965; 78Da2466, Feb. 27, 1979).

The court below decided to the effect that the right to claim for the transfer registration of ownership against the defendant 2 by the above agreement has expired, which is an error of law by misunderstanding the legal principles on the agreement of the intermediate omission registration or misunderstanding the facts in violation of the rules of evidence. The arguments that can be seen as pointing this out are with reasons.

4. We examine the following non-party 1's debts against the defendant 3 and the right to claim ownership transfer registration.

According to the court below's adopted evidence, Gap evidence Nos. 7 through 9 (Receipt, power of attorney), Eul evidence Nos. 20 and Eul testimony of non-party 3, the above non-party 1 agreed to pay the above debt to the above non-party 3 up to the end of July 2, 198 and delegate (transfer) the land of this case to the non-party 3 when the non-party 3 fails to pay the above debt to the above non-party 3 up to the end of July 2, 198. On August 22 of the same year, the defendant 3 confirmed that the share of the above non-party 3 in the land of this case should be transferred to the above non-party 1 as construction payment, and at the same time, the non-party 1 did not pay the above debt to the non-party 3 up to the non-party 1 to the non-party 90,000 won after deducting it from the legal liability of the non-party 1.

According to these facts, with respect to the above defendant's debt against the defendant 3 or the debt against the non-party 3 among the land in this case, it cannot be deemed that the above defendant's share (639.17 shares, for which the registration of transfer was made in the future) was a prior performance agreement rather than the above defendant's obligation to transfer ownership to the non-party 1. There is no other evidence to acknowledge it. Further, the non-party 1 agreed to transfer the above defendant's share out of the land in this case to the non-party 3. The non-party 1, the non-party 3 and the above defendant omitted the intermediate registration in the future of the non-party 1, and the above defendant made an interim omission registration agreement with the contents that the non-party 1 would have made the ownership transfer registration to the above defendant in the future of the non-party 3. Accordingly, it cannot be deemed that the right to claim the ownership transfer registration against the non-party 1 is lost by the middle omission registration agreement, and that the right

The court below held that there is an error of law by misunderstanding the legal principles on the agreement of the intermediate omission registration or by misunderstanding the facts in violation of the rules of evidence. The appeal can be viewed as pointing this out.

It is so decided as per Disposition by the assent of all participating Justices on the bench that the judgment of the court below is reversed and the case is remanded to the court below for further proceedings consistent with this Opinion.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho