무효등기유용의 효력 - 대전지방법원 2016. 12. 13. 선고 2016나105785 판결(대법원 2022. 7. 28. 선고 2017다204629 판결의 원심판결), 대법원 2009. 5. 28. 선고 2009다4787 판결 -

Abstract

Traditional precedents and the prevailing view hold that regarding the usefulness of invalid registrations, if there is a third party with an interest in the registration before the agreement on its usefulness, the agreement is not effective in relation to that third party, and within that scope, the registration made useful is considered invalid as it does not correspond to the actual legal relationships.
 The decisions in question judged that in cases where a provisional registration, which is invalid, has been utilized to complete a final registration or a provisional transfer registration, (a) the utilization of the registration cannot be claimed against a third party with an interest in the registration, such as a provisional seizure creditor, but (b) among the parties to the agreement of utilization, the validity of the utilization agreement and the registration made useful can still be claimed. However, in the situations addressed by these decisions, the provisional seizure creditor, who is a third party with an interest in the registration, can only request the cancellation of such provisional registrations on behalf of the debtor (one of the parties to the utilization agreement) and therefore, cannot claim the invalidity of the utilization agreement and the registration made useful against the parties to the invalid registration utilization who cannot oppose them.
 However, the conclusion of (b) is incorrect, and therefore, the conclusions of the decisions in question cannot be considered correct. That is, the conclusion that in the presence of a third party with an interest in the registration, the agreement of utilization and the registration made useful are invalid only in relation to that third party, and the validity of the utilization agreement and the registration made useful can still be claimed among the parties to the utilization is not acceptable as it acknowledges the relative effect of real rights. When there is a third party with an interest in the registration, the utilization of an invalid registration should not be recognized. It is not that the validity of the agreement of utilization and the useful registration “cannot be claimed only against the third party with an interest in the registration” and “within that scope,” but rather, “in cases where there is a third party with an interest in the registration,” the agreement of utilization and the useful registration, not corresponding to the actual legal relationships, should be considered “invalid against everyone.” Here, “everyone” includes the parties to the agreement of utilization (the counterpart).