[2] Where the legal meaning of the act of the mortgagee and the mortgagee of the right to collateral security is unclear, whether it is a matter of interpretation to clarify the substance of the legal relationship (affirmative), and the method of interpreting the intent (affirmative)

[3] In a case where Gap donated real estate from his mother Eul and completed the registration of transfer of ownership, and Eul et al. sought the cancellation of the registration of creation of a neighboring mortgage against Byung et al., the case holding that the judgment below, which held that Eul et al. was erroneous in interpreting its declaration of intent in order to prevent Byung et al. from arbitrarily disposing of the real estate and at the same time to secure the monetary claim that Byung et al. would have acquired against Eul in relation to the real estate, in light of the fact that Byung et al. agreed to transfer part of the above real estate to Byung et al.

1. The lower court determined that it is reasonable to view the establishment registration of a mortgage of this case as an invalid registration where there is no secured claim, on the grounds that the Defendants asserted to the effect that the Defendants completed the establishment registration of a neighboring mortgage in the names of the Defendants regarding each of the instant real estate, to prevent the Defendants from exercising their property rights at will, but such facts cannot be acknowledged, and that the Defendants failed to assert and prove, on the grounds that the existence of secured claim, the specific amount, and land category much more than the market price of each of the instant real estate, and the existence of cause documents, etc.

2. However, we cannot accept the above determination by the court below.

(1) In relation to a declaration of intent, it is a matter of fact finding that what the parties expressed and what is the purpose of which is to determine the legal meaning of the expression of intent is. It is an interpretation of the so-called expression of intent that establishes the legal meaning of the act based on the recognized facts belongs to the area of legal judgment distinct from the fact finding. In addition, in a case where the legal meaning of a series of acts conducted by the parties for a certain purpose is unclear, it is obvious from a legal point of view and evaluation, and it is also an interpretation of the expression of intent that indicates what is the legal meaning of the act (see Supreme Court en banc Decision 9Da48948 delivered on March 15, 201). In a case where the legal meaning of the act committed by the mortgagee and the right to collateral security is unclear, it is a matter of fact finding, not a matter of fact finding, but a matter of interpretation of the intent. Therefore, the legal meaning of the act should be reasonably interpreted by comprehensively considering the relationship between the mortgagee and the right to collateral security, the motive of the parties, and the genuine intent and empirical rule.

(2) The record reveals the following circumstances.

① The Plaintiff, the Defendants, Nonparty 1, 2, 3, and 4 are the siblings who were born between Nonparty 5 and Nonparty 6 (the original trial is between Nonparty 7 and the Defendant, and the mother of Nonparty 7 is also Nonparty 6, but this seems to be an error).

② On January 30, 2004, the Plaintiff independently received each of the instant real estate from Nonparty 6 and completed the registration of ownership transfer. As to each of the instant real estate, the registration of establishment of a mortgage was completed on April 7, 2006, the maximum debt amount of 300 million won, the Plaintiff, and the Defendants, the Defendants, the mortgagee, and the Defendants. The written agreement on establishment of a mortgage between the Plaintiff and the Defendants states that “the mortgagee shall establish a mortgage on each of the instant real estate in order to secure, within the scope of the maximum debt amount, all of the obligations, such as a loan deposit, note, and payment certificate, signed and sealed by the obligor against the obligee as the sole or several obligations or guarantors, which are issued, endorsed, guaranteed, and accepted by the obligor, and all obligations arising from checks or commercial transactions.”

③ The Defendants agreed to jointly receive each of the instant real estate from Nonparty 6, but once they completed the registration of ownership transfer under the Plaintiff’s sole name, asserted that each of the instant mortgage was established in the name of the Defendants to prevent the Plaintiff’s arbitrary exercise of property rights. On the other hand, the Plaintiff asserted that the registration certificate of right to each of the instant real estate, the Plaintiff’s seal imprint, and the certificate of seal imprint, which the Plaintiff left to Nonparty 6, were obtained without the Plaintiff’s consent, and completed the registration of ownership transfer without the Plaintiff’s consent.

④ On September 12, 2012, the Plaintiff completed the registration of ownership transfer in the name of Nonparty 1, 3, 4, and 7 with respect to each of the instant real estates.

⑤ Around January 2013, the Plaintiff filed an accusation against the Defendants by false entry, etc. in the authentic copy of the authentic deed, and sent to the Defendants a certificate of content demanding the cancellation of the registration of the establishment of the instant neighboring establishment by January 31, 2013, and filed the instant lawsuit on March 28, 2013, against which the Defendants did not comply.

(6) The Plaintiff, upon undergoing an investigation at the investigative agency, stated to the effect that “the Defendant: (a) only gave the Plaintiff the real estate of this case to Nonparty 6; (b) Nonparty 6 would jointly give the Plaintiff the registration right certificate, seal imprint certificate, and seal imprint; and (c) the Plaintiff had the registration right certificate, etc. to Nonparty 6.”

(3) We examine the above facts in accordance with the legal principles as seen earlier.

Recognizing the legal meaning of the establishment of the right to collateral security in this case between the plaintiff and the defendants belongs to the area of legal judgment, not the fact-finding as a matter of the interpretation of the intent as seen earlier.

According to the records, it is sufficiently recognized that the Plaintiff agreed to transfer 1/3 or 1/7 of each of the instant real estate to the Defendants, and the fact that the Plaintiff lawfully established the instant collateral to the Defendants is presumed to be the fact that the establishment of the instant mortgage was completed. In full view of the language and text of the mortgage agreement, the relationship between the Plaintiff and the Defendants, the process of the Plaintiff’s acquisition of ownership of each of the instant real estate, and the land category and size of each of the instant real estate, etc., the Defendants were deemed to have completed the establishment registration of the instant real estate instead of completing the registration of transfer of ownership from the Plaintiff. The Defendants are deemed to have completed the registration of establishment of the instant real estate instead of completing the registration of transfer of ownership from the Plaintiff. At the same time, the Plaintiff expects the actual effect of preventing the Plaintiff from arbitrarily disposing of each of the instant real estate, and if each of the instant real estate was disposed of by the Plaintiff at will or purchased through consultation, it is sufficient to view that the Defendants had secured monetary claims against the Plaintiff in relation to each of the instant real estate.

(4) Nevertheless, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence or by exceeding the interpretation of expression of intent, which affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal by the Defendants, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)