사해행위에 의한 가등기가 부기등기로 이전된 경우 원상회복의 방법

Restoration in case transferred as the Additional Registration from the Provisional Registration by Fraudulent Act

This study analyzed the full bench decision on creditor’s right to revoke,Sentences 2015. 5. 21 and 2012, Da 952. The example of the above verdictcovered the content: the subscription of purchase was done by thefraudulent act that does harm to the creditor and thus the provisionalregistration was finished; however, the beneficiary transferred theprovisional registration to the third party not knowing the fact by menas ofthe supplementary registration. Thus, this study discussed that under theabove circumstance, if the third party who had taken the assignment of theright completed the provisional registration and the perfected registrationcan, the creditor can cancel the subscription of purchase as a fraudulentact and claim the restitution against the beneficiary as the transferor of theright.According to the conventional case, the possibility for the creditor toexercise the revocation against the beneficiary was denied for the reasonthat the assignee (beneficiary) of the right by the above provisionalregistration can not be the other party for the suit for registrationcancelation of the provisional registration and the grantor with the right forthe provisional does not have the obligation for the compensation ofequivalent value. Thus, the beneficiary with any bad intention can concealthe responsible property or can evade the debt with ease, which caused theproblem of being used as the passage of deviating the reasonable property. Therefore, the Supreme Court changed the conventional case judging thatin the full bench decision above, the status of the beneficiary is notextinguished by the supplementary registration, the fraudulent act againstthe beneficiary is recognized and the compensation of the equivalent valueshall be paid even if the fraudulent act against the beneficiary is canceledand the beneficiary can not implement the obligation to cancel theprovisional registration as a the restitution of the original property.This study analyzed the said decision by reviewing the restorationobligation in the creditor’s right to revoke, the effect of the supplementaryregistration before the provisional registration, and the possibility of thecompensation for the damage against the opponent in the suit forregistration cancelation and the beneficiary in the case. The above fullbench decision is considered to be very reasonable in that it will largelyreduce the plausibility to the act of concealing the debtor's assets, preventa potential accident of real estate transactions, protect the parties in goodfaith, and achieve the stabilization of the transactions.