무효인 가등기의 유용에 있어서 제3자의 지위 - 본등기에 따라 촉탁으로 말소된 경매기입등기의 회복을 중심으로 - (대상판결 : 대법원 2019. 5. 16. 선고 2015다253573 판결)

Abstract

The Supreme Court has held in many cases that a title-holder may not assert the validity of the previously void registration to a third person who had an interest in the register before the arrangement for rehash of the void registration. However, the meaning of “may not assert” is not as clear enough in some respects. The decision under review in this article cast a light on the understanding of a detailed application of “may not assert”. It says that when a registration of ruling to commence an auction, which was done before the agreement of rehash of an invalid provisional registration, is cancelled as a result of a principal registration according to the above provisional registration, the registration of ruling to commence an auction does not contravene the priority effect of the said provisional registration, and that it is permissible for the reinstated registration of ruling to commence an execution sale to coexist with the said provisional registration. In other words, an owner of the property in this case may be changed by the agreement of rehash of the invalid provisional registration and the principal registration according to the provisional one in relation to the creditor applying for the execution sale, but it does not mean he can demur to the creditor that the property is not subject to the execution sale because of his not being an debtor. He cannot maintain the priority effect of the provisional registration over the creditor in such cases. If the transfer of ownership is registered, not the commencement of an auction in this case, the above rehash agreement and the principal registration make no change of hands. The reason is the ownership is the right not to allow another on the same property. “May not assert” can, therefore, mean either the nullity of the change of property rights, or the mere denial of precedence of a certain registration, accordingly whether the right acquired by such rehash can coincide with the right of third parties having interest in the register itself. Secondly, the Supreme Court determined whether somebodies were those third parties whose consent in writing was required for the reinstatement of a cancelled registration, solely based on the formal statement of the register, but then it called for the allowable coincidence with the reinstated registration as an additional requirement. If a third party’s registration cannot be compatible with a cancelled registration to be recovered, it is simply to be cancelled. The holding under review said that a registration of ruling to commence an execution sale was compatible with a title whose holder was not a debtor. In consideration of the principle that we are not allowed to execute on the property not owned by a debtor, both of the above cannot reconcile judging from the register only, but the Supreme Court said differently based on the merits, thereby aggrandising the examples of which registrations were compatible in the reinstatement of a cancelled registration.