[토지소유권이전등기말소등기청구사건][고집1982(민사편),387]
Assignment of claims without meeting the requirements for counterclaim and payment in substitution
Since payment in kind is a physical contract that is established when another performance is practically performed in lieu of the original performance, if the performance is a claim, the payment in kind shall not be required to satisfy the requirements for setting up against the transfer of claim.
Article 466 of the Civil Act
[Plaintiff-Appellant] 30 August 30, 1962, 62Da311 (Civil Code Article 466(11), 423 pages, 7445)
Plaintiff 1 and one other
Defendant
Gwangju District Court (81Na427)
The judgment of the first instance shall be revoked.
The plaintiffs' claims are dismissed.
All the costs of lawsuit shall be borne by the plaintiffs in the first and second instances.
On June 8, 1978, the defendant will implement the procedure for cancellation registration of each transfer of ownership, which was based on the successful bid on July 28, 1977, issued by the Gwangju District Court No. 6070 on June 8, 197, with respect to the real estate listed in subparagraph 1 of the attached list, and with respect to the real estate listed in subparagraph 2(a) and (b) of the same list, to Plaintiff 2.
The judgment that the lawsuit costs shall be borne by the defendant.
The same shall apply to the order.
In full view of all the statements in Evidence Nos. 3-1 through 5, 6 (each certified copy of register), Eul evidence Nos. 1-2 (Application for Auction), 9 (Protocol), 11, and 14 (each decision), the real estate listed in the separate sheet No. 1 is owned by plaintiff Nos. 2 (a) and (b) was owned by plaintiff No. 2. The real estate listed in the separate sheet No. 1 was owned by the plaintiff No. 3. 3 (No. 5, 6 (each decision), Eul evidence No. 1 to Eul evidence No. 3 (each decision), Eul evidence No. 1-2 (Application for Auction), Eul evidence No. 1-2 (Protocol), 11, and 14 (each decision), and the real estate listed in the separate sheet No. 2 (Ga) was originally owned by the plaintiff No. 1. 2. 71, 1976, which provided that the plaintiffs 1 provided the real estate as collateral for claim No. 3,000,00,000).
Accordingly, on June 12, 1976, Plaintiff 1 provided and transferred, under the agreement with Nonparty 2, an amount equivalent to KRW 1,365,300 for alcoholic beverages owned by himself and KRW 3,193,514 for the credit credit amount of alcoholic beverages transferred by Nonparty 1 and KRW 1,828,214 for alcoholic beverages transferred by Nonparty 1, in lieu of performing the above mortgage debt amount of KRW 3,00,000, the mortgage obligation prior to the decision to commence the auction of the real estate of this case was extinguished by payment in kind. Accordingly, inasmuch as the mortgage which becomes the basis of the auction becomes extinct, the auction on the premise that the mortgage continues to exist as long as the mortgage which becomes the basis of the auction is extinguished, the registration of transfer of ownership in the name of the defendant is invalidated, and therefore, the registration of transfer of ownership under the name
Therefore, if Plaintiff 1 transferred KRW 1,828,214 to Nonparty 2, who was transferred by Nonparty 1 on June 12, 1976, before the decision of commencement of the auction of this case, to Nonparty 1, 76, and the payment in kind took place, the transfer of other claims to Nonparty 2 for the repayment of obligations to the creditor, and even if the payment in kind was made in substitution for the repayment of obligations, it is an essential contract that is established when other claims are actually performed in lieu of the original payment, even if the payment in kind is performed in lieu of the original payment, it shall not be deemed that the original obligation would not be extinguished unless the payment in question is satisfied. In this case, there is no evidence to view that Nonparty 1 transferred the claims to Nonparty 2 on the above date prior to the decision of commencement of the auction of this case by Nonparty 1, 10, which was known to Nonparty 1 by Nonparty 1, 4-1 to Nonparty 4 (Notice of Assignment of Claims), and the purport of Nonparty 1 to Nonparty 2’s testimony and evidence No. 16 (No. 2).
Therefore, the claim of the plaintiffs on the premise that all of the collateral obligations were extinguished by payment in kind by the assignment of credit prior to January 12, 1977, at the time of the decision to commence the auction of this case, shall be dismissed without any further consideration. The judgment of the court of first instance is unfair in conclusion, and the defendant's appeal as to it is reasonable, and the costs of the lawsuit shall be borne by the plaintiffs who lost both the first and second trials.
Judges Lee Jong-chul (Presiding Judge)