가등기상 권리를 양도한 최초의 가등기명의인을 상대로 한 사해행위취소 및 가액배상청구에서 가액배상의무의 범위 – 대법원 2015. 5. 21. 선고 2012다952 전원합의체 판결-

In a case where a beneficiary’s provisional registration was fraudulently established and subsequently transferred to a third party as an additional registration form, which later became perfected based on the provisional registration, Supreme Court of Korea held that, even if the beneficiary was in a position of being disqualified as a defendant in an ordinary claim for cancellation of the provisional registration, creditors could still seek the restoration of a fraudulent transfer as a way of monetary compensation. The Supreme Court reversed its previous decision that denied the restoration claim on the grounds of defendant’s disqualification. The argument that the impossibility of returning the original real estate, due to the transferred and perfected registration, is insufficient to deny valued compensation. In this respect, the Court made a valid point. However, if a beneficiary, who was the previous holder of provisional registration and transferred the rights to a third party, is compelled to bear compensation liability equivalent to the value of the subject real estate solely due to the reason that the provisional registration itself cannot be removed, it may result in ordering restoration in excess of the shortfalls of joint collateral. A provisional registration does not entail the effect of changes in real rights over immovables but serves only to preserve their priority. In addition to provisional registration for the purpose of reservation of sale, provisional registration for the purpose of collateral is frequently employed. In cases not covered by the Provisional Registration Collateral Act, the right of priority reimbursement in enforcement proceedings is not recognized even for collateral purposes. The determination of the beneficiary’s monetary compensation should involve a detailed examination of the scope of joint collateral secured by the beneficiary in each case. In the present case, the beneficiaries were granted a priority mortgage at the time of the provisional registration, and the mortgage was canceled upon the completion of perfected registration. Consequently, it appears that the beneficiaries already received priority payment of the secured debt in the process of canceling the mortgage, so the liability for compensation should be recognized to the extent that the secured debt has been satisfied. Any amounts covered during this process shall be excluded from the calculation of compensation arising from the provisional registration. Furthermore, it should also be examined whether the sale contract that led to the perfected registration can be evaluated as an fraudulent act in its entirety.