Whether or not a provisional registration should be cancelled on the ground that a registration of ownership transfer has been made for each reason of sale to the defendant during a lawsuit.

Unless any other evidence exists to deem that the period of exercise of the right to complete the instant purchase and sale reservation, the right to complete the purchase and sale reservation for each of the instant real estate has expired due to the lapse of the exclusion period of 10 years, a date of the reservation for sale and purchase, and is obliged to implement the procedures for each cancellation registration of the instant provisional registration.

Civil Procedure Act

2015 grouped 21729 Cancellation of provisional registration

Korea

j AA

on October 19, 2016

on July 28, 2016

1. The defendant

A. The registration of the Ulsan District Court and the procedure for cancellation of the provisional registration of the right to claim ownership transfer registration completed on September 7, 2002 by the receipt No. 92794 on each real estate listed in the separate sheet, are implemented. B. The Ulsan District Court’s registration of each real estate listed in the separate sheet No. 1, 2, and 3 and the procedure for cancellation of ownership transfer registration completed on July 28, 2015 as the receipt No. 16678;

C. The registration of the Ulsan District Court with respect to each real estate listed in the separate sheet Nos. 4 and 5, and each procedure for the cancellation of ownership transfer registration completed on July 28, 2015 by the receipt No. 16679, will be implemented.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

1. The defendant

A. The registration of the Ulsan District Court and the procedure for cancellation of the provisional registration of the right to claim ownership transfer registration completed on September 7, 2002 by the receipt No. 92794 on each real estate listed in the separate sheet, are implemented. B. The Ulsan District Court’s registration of each real estate listed in the separate sheet No. 1, 2, and 3 and the procedure for cancellation of ownership transfer registration completed on July 28, 2015 as the receipt No. 16678;

C. The registration of the Ulsan District Court with respect to each real estate listed in the separate sheet Nos. 4 and 5, and each procedure for the cancellation of ownership transfer registration completed on July 28, 2015 by the receipt No. 16679, will be implemented.

2. The costs of the lawsuit are assessed against the defendant.

1. Facts of recognition;

A. YellowA is delinquent in the transfer income tax of KRW 227,288,810 as of May 13, 2015 (Jurisdiction: the Department of Tax Revenue) as listed below.

B. With respect to each real estate listed in the separate sheet (hereinafter referred to as "each real estate of this case"), the Yellow City District Court completed the registration of Ulsan District Court on September 7, 2002 and the provisional registration of the right to claim transfer of ownership (hereinafter referred to as "provisional registration of this case") on September 7, 2002 on the share of his own ownership as the reason of the pre-sale agreement as of September 7, 2002.

C. On July 28, 2015, Hongsan District Court registration No. 16678, which was received as of July 24, 2015, and on July 24, 2015, Hongsan District Court registration as to No. 4 and No. 5 of the instant real estate and registration of transfer of each ownership (hereinafter referred to as “registration of transfer of ownership”) was completed on the ground of sale as of July 28, 2015, as of No. 16679, the receipt as of July 28, 2015, and as of July 24, 2015.

2. Whether the lawsuit of this case is lawful

A. With respect to the Plaintiff’s filing of the instant lawsuit by subrogation of YellowA as the obligee of YellowA, the Defendant asserted that the instant lawsuit was unlawful and unnecessary for the sake of lack of proof as to the insolvency of YellowA, and thus, according to the overall purport of the statement and pleading of No. 1, No. 1, No. 2, No. 2, No. 3 and No. 227, No. 88,810 won are in arrears. On the other hand, the affirmative property is recognized to have no property other than each of the instant real property, and therefore, the Defendant’s defense is without merit.

B. In addition, the Defendant asserts to the effect that the instant lawsuit filed by the Plaintiff, a creditor of sulfurA, is unlawful, since the instant real estate was nominal trust by the Nonparty A with the YellowA. However, even if the title trustee of each of the instant real estate was a title trustee, it cannot be asserted against the Plaintiff, a third party pursuant to Article 4(3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name. Therefore, the Plaintiff’s assertion on the different premise is without merit.

3. Judgment on the merits

A. Determination on the cause of the claim

(1) Part of the claim for cancellation of the provisional registration of this case

In the unilateral promise for sale, the right to complete the sale and purchase agreement, namely, the right to complete the sale and purchase agreement, if it is a kind of right to create a sale and purchase agreement between the parties, within such period, and if there is no such agreement, within 10 years from the time the reservation was made, the right to complete the sale and purchase agreement shall be extinguished upon the lapse of the exclusion period (see, e.g., Supreme Court Decisions 91Da44773, Jul. 28, 1992; 200Da26425, Jan. 10, 200). As to the instant case, as long as there is no evidence to deem that the Defendant and the YellowA separately agreed on the exercise period of the right to complete the sale and purchase agreement, the right to complete the sale and purchase agreement for each of the instant real estate between the Defendant and the YellowA shall be null and void by the lapse of the exclusion period due to the lapse of the registration period from September 7, 2002.

(2) Part of the claim for cancellation of ownership transfer registration of this case

On July 28, 2015, which was under the litigation of this case, on July 24, 2015, on the part of the defendant on July 24, 2015, the fact that he completed the registration of ownership transfer for his share in each of the real estate of this case on the ground of the sale and purchase as the actual owner of each of the real estate of this case is as seen above. However, each of the above facts acknowledged is merely asserted that the defendant would complete the registration of ownership transfer in this case in the sense of knowing the limitation period and the fact during the litigation of this case, and did not claim that he would complete the new registration of ownership transfer as of July 24, 2015, and that the defendant and Yellow did not claim that the provisional registration of this case was cancelled on July 24, 2015, and it is difficult to view that the provisional registration of this case was concluded on July 24, 2015 under the circumstances that the non-party A was the actual owner of each of the real property of this case.

B. Judgment on the defendant's assertion

(1) The Defendant asserts to the effect that, as the title trustee, who is not the actual owner of each of the instant real estate, is null and void, the title trustee, who is the contracting owner, is not the actual owner of the instant real estate, and the title transfer registration under the title trustee, is null and void, the Defendant asserts that there exists no title to seek cancellation of the instant provisional registration and the instant title transfer registration. However, if, in purchasing the real estate through another person, the purchaser, who is the other party to the contract, had been aware of the title trust relationship, merely an internal relationship between them, and even if there were no special circumstances such as where the seller, who is the other party to the contract, was aware of the title trust relationship, the title trust relationship constitutes a title trust (Supreme Court Order 2013S13, Oct. 7, 2013) and the title truster, who is the contracting owner, is merely a final and conclusive owner of the instant real estate. In light of such legal principles, the Plaintiff’s assertion that the ownership transfer registration was made under the name of the former owner (A and the title trust agreement).

(2) The Defendant asserts to the effect that, since the YellowA completed the registration of transfer of ownership of this case to the Defendant following the institution of the instant lawsuit, it is against the good faith principle to seek cancellation of provisional registration on the ground that it gives up the benefit of exclusion period in relation to the Defendant.

The limitation period is to promptly determine the legal relationship by allowing the right holder to exercise his/her right as soon as possible. The purport of the limitation period is to determine the legal relationship. Unlike the effect of the extinguishment of a right due to the lapse of a certain period and the circumstance that it is not an exercise of a right, the extinctive prescription has to bring about an effect of the extinction of a right (see, e.g., Supreme Court Decision 94Da22682, 22699, Nov. 10, 1995). Thus, the interruption of the limitation period is not possible during the limitation period (see, e.g., Supreme Court Decision 200Da26425, Jan. 10, 200), and the right is extinguished as a matter of course with the lapse of the limitation period, and the waiver of a provisional registration claim based on the lapse of the limitation period is not recognized, and it is difficult to view that the claim for cancellation of a provisional registration is contrary to the good faith principle

(3) In addition, the Defendant asserts to the effect that the registration of transfer of ownership in this case was valid, inasmuch as the YellowA completed the registration of transfer of ownership in this case with the knowledge that the right to complete the registration of transfer of ownership was extinguished due to the lapse of the exclusion period. However, as seen earlier, YellowA completed the registration of transfer of ownership in this case on the ground of a new sale on July 24, 2015, and as long as the ground for registration becomes null and void, the Defendant bears the obligation to cancel the registration of transfer of ownership in this case. The Defendant’s assertion

4. Conclusion

Thus, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

shall be ruled.