통정허위표시에 따른 가등기의 명의인이 임의로 본등기를 마친 경우와 민법 제108조 제2항의 제3자

Acording to the Supreme Court's Ruling No. 2019Da280375 dated January 30, 2020,in the case that, after a provisional registration was established by a fictious declarationof intention in colusion, the fictious declaration that caused its establishment wasrevoked by a subsequent completion apeal, but the provisional registration tileholderfiled for a registration based on the judgement of the first trial that was canceled/concluded by the apeal judgment while the false provisional registration, which is theapearance of the false representation, remained without being erased, and made a mainregistration of transfer of ownership, based on which he completed the transfer ofownership to a third party, the sole apearance that can be trusted by the third partyis not the provisional registration by the provisional registration tileholder, but the mainregistration; therefore, the third party is not a person who has entered into a new legalinterest relationship based on the false provisional registration itself. As provided in Article 23 Subparagraphs 1 and 4 of the Registration of Real Estate Act, not only aprovisional registration but also a main registration by a provisional registration shouldbe jointly filed for in acordance with the general principles of registration. The Articlealso stipulates that in the absence of coperation from the person obliged to file for aregistration, it can be unilateraly made by the person entiled to file for a registrationwith a judgement that orders the declaration of intention. Here, the judgement meansonly a conclusive one. Also, since the Article 108 Subparagraph 2 of the Civil Act isgrounded on the principle of protection of trust in apearance, the apearance itselfshould be formed by a fictious declaration of intention in colusion. Therefore, whena provisional registration and a main registration by a fictious declaration of intentionin colusion are completed by a joint aplication or a conclusive judgment that replacesthe declaration of intention folowing the general principles of registration, theapearance coresponds to one formed by the fictious declaration, but if it is completedagainst Article 23 of the Registration of Real Estate Act, it is not considered such anapearance. As the main registration in this case was made based on the judgement ofthe first trial canceled/concluded by the subsequent completion apeal, the view of thisruling that the main registration does not corespond to the apearance formed by afictious declaration of intention in colusion is justifable