B. In a case where a secured party provided a collateral to a third party as a collateral, but received a repayment of principal and interest and returned it to the owner, whether it constitutes a case where the secured party appropriated the collateral for repayment under Article 45(2) of the Enforcement Decree

B. If the secured party provided the security to a third party as a collateral for his/her own debt security, but he/she paid all the principal and interest to the third party, and directly completed the registration of ownership transfer in the name of the third party, the security party cannot be deemed to fall under the case where he/she uses the security to repay the amount under Article 45 (2) of the Enforcement Decree of the above Act, only if he/she had the security interest again provided it to a third party.

The costs of appeal are assessed against the defendant.

According to the reasoning of the judgment below, on July 1, 1980, when the plaintiff borrowed 4,500,000 won from the non-party 2 as security, the plaintiff agreed to make a provisional registration of the above non-party 2 with respect to the real estate of this case which is owned by the plaintiff. If the non-party 1 fails to pay it by the due date, the above non-party 1 failed to pay it by the due date, and the above non-party 1 is unable to pay the above obligation by the due date. Thus, the above non-party 2 completed the principal registration based on the provisional registration of this case for the purpose of security. Thus, on March 20, 1981, the above non-party 3 was transferred to the non-party 3 as a means of transfer for security, and the above non-party 3 was transferred to the above non-party 2 on June 27, 1980, and the plaintiff received the registration of ownership transfer from the above non-party 3 to the above non-party 2 as evidence and the record.

2. Determination on the ground of appeal No. 2

Article 45 (1) of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 9960 of Jul. 11, 1980) provides that where an obligor transfers assets to secure the repayment of an obligation, a copy of contract satisfying the requirements under each subparagraph of the same paragraph shall not be deemed a transfer if attached to the final return of tax base. Paragraph (2) of the same Article provides that where the obligor violates the requirements under paragraph (1) of the same Article after concluding a contract on security or uses assets to repay an obligation due to non-performance of obligation, it shall be deemed that such assets are transferred at the time of transfer. Article 45 (1) of the same Act provides that where a person without tax payment asserts that he is a transfer by means of transfer, and where a copy of contract meeting the requirements under each subparagraph of the same paragraph is not attached to the final return of tax base, it shall not be deemed that the transfer of assets must be deemed that the assets are transferred to the Plaintiff (see Supreme Court Decision 83Nu120 of May 24, 1983).

Therefore, the judgment of the court below is justified in finding that the registration of ownership transfer for the real estate of this case, which was made by the plaintiff non-party 2 in the future, was made for the purpose of securing the obligation, and it cannot be viewed as a transfer subject to the transfer income tax, and there is no error of law such as misunderstanding of legal principles

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Young-ju (Presiding Justice)