가등기담보등에 관한 법률 제11조 단서 후단의 ‘소유권 취득’의 의미와 효과 ― 대법원 2021. 10. 28. 선고 2016다248325 판결[공2021하,2229]의 평석 ―

Abstract

The case is as follows. After the provisional registration of the ownership transfer in the name of A for the real estate, A has completed the registration without going through the liquidation procedure, and then mortgage has been registered in the name of the defendant. In a case where the real estate was acquired by a third party through an compulsory auction, a dispute over the attribution of dividends between the plaintiff who acquired the liquidation claim of the debtor and the defendant who received dividends based on the mortgage registration. The Supreme Court decided that the registration of the ownership would be retroactively effective due to the acquisition of ownership by a third party, so that the right of A to the provisional registration for security has lapsed and mortgage registration of the defendant has become retroactively effective, the amount to be distributed to the plaintiff may have been extinguished at least partially. It is difficult to simply agree on ‘retroactive validity of the registration’, i.e. ‘retroactive acquisition of ownership’. ‘The Acquisition of ownership by a third party’ in the Article 11 of Provisional Registration Security is incompatible with the Civil Code, which does not recognize public credibility in real estate registration. It can be understood well in the sense that ‘the debtor cannot compete with a third party’ that registered ownership transfer based on this registration. So the validity of the registration of the ownership transfer, i.e. the acquisition of ownership, cannot be considered in this case. Even if we would accept the phrase literally, the view that the holder of the provisional registration of the ownership transfer acquires the ownership ‘retroactively’ cannot be in harmony with the legal doctrine of changes in property rights under the Civil Code. It would be better to recognize the defendant's right to the provisional registration based on A’s provisional registration, as in the original trial.