[2] Requirements for recognizing that ownership has been transferred to an obligee in a conclusive manner by the exercise of a security right through the settlement of attribution

[2] In order to recognize that the ownership of real estate was finally transferred by the execution of a security right through the realization of ownership, the parties must first assert that the execution of the security right was conducted by the creditor through the realization of ownership. In addition, the fact that the principal registration was completed on the basis of provisional registration is insufficient solely by the fact that the creditor had made the principal registration on the basis of provisional registration, and then the proceeds should be appropriated to the principal and interest of the secured claim, and if the amount of the security is less than the amount of the secured claim,

1. According to the reasoning of the judgment below, the court below held that since the above real estate was not transferred to the plaintiff's Gyeonggi-gun ( Address 1 omitted), 424 square meters (No. 1 omitted) and 212 square meters (No. 2 omitted) prior to the sale on August 24, 1983, the provisional registration of the right to claim ownership transfer was made on the same day on August 24, 1983; the above real estate was transferred to the defendant on the ground of sale on August 16, 1984, the ownership transfer registration of the above defendant's real estate was made on August 24, 1983; thereafter, on the other hand, on May 28, 1991, the court below acknowledged that the above real estate was transferred to the defendant under the above provisional registration No. 1 and the remaining real estate was transferred on the ground that the ownership of the above real estate was not transferred on the expiration of the period of 10 years after the expiration of the period of payment on May 28, 1999, respectively.

2. If a creditor has made a provisional registration of a real estate for the purpose of securing a claim but failed to obtain repayment by the due date, and the principal registration of transfer of ownership based on the above provisional registration has been made, unless otherwise expressly agreed by the parties, such principal registration is made for the purpose of securing a claim, and the so-called "an weak meaning of transfer" is planned to be settled between the parties. Even if a weak meaning of transfer has been made after the due date for payment, the debtor can at any time repay his obligation and claim cancellation of the principal registration based on provisional registration and provisional registration against the creditor (see, e.g., Supreme Court Decisions 93Da734, Jun. 22, 1993; 91Da28528, May 26, 1992; 91Da28528, May 26, 1992; 197Da1735, Nov. 27, 197).

Therefore, in order to recognize that the ownership of the real estate No. 1 in this case was finally transferred by the execution of the security right through the realization of reversion, the parties should first assert that the execution of the security right was made by the realization of reversion. In addition, the fact that the above defendant completed the principal registration based on the provisional registration is insufficient, the fact that the above defendant made the principal registration on the basis of the provisional registration is insufficient, and that the payment should be appropriated to the principal and interest of the secured claim after assessing the secured real estate at an appropriate price, and if the remaining amount is returned or the appraised

3. However, according to the records, even though Defendant 1 was tried by service by public notice, and Defendant 1 was not in the process of settlement in the process of receiving the registration of ownership transfer, the Plaintiff merely asserted that the above registration cannot be cancelled before the repayment of the principal and interest of the secured obligation, and that it cannot be asserted that Defendant 1’s registration of transfer was made by the exercise of the security right in the settlement to which the principal and interest belongs.

Moreover, even based on the evidence presented by the lower court, it cannot be said that it is insufficient to recognize that the principal registration based on the provisional registration of this case has been transferred by the method of reversion and liquidation.

In other words, the evidence presented by the court below is the whole copy of the register of the real estate of this case and the subscription form for real estate trade, and first of all, the contract form for real estate trade prepared on August 24, 1983 between the plaintiff and the defendant of this case, which was made on August 24, 1983, where the plaintiff did not pay the purchase deposit amounting to 5,00,000 won and the damages agreed in advance by the plaintiff until December 30 of the same year, the contract form for real estate trade, which was made on August 24, 1983, is stated that even if there is no separate declaration of intention between the parties, it shall be deemed that the registration of transfer was made on the following day

Meanwhile, according to the copy of the register of the real estate No. 1 in this case (A evidence No. 1-1), the real estate No. 1 in this case was cancelled on June 13, 1983, and the provisional registration under the name of the defendant No. 1 was made on the same day, and on the same day, it can be recognized that the provisional registration under the name of the defendant No. 2 was made. According to the evidence No. 2 in this case, the provisional registration under the name of the above non-party No. 1 was made on June 13, 1983, and the provisional registration under the above non-party No. 1 was not rejected by the court below, and the plaintiff and non-party No. 2 issued a promissorysory note No. 2,00,000 to the payee No. 1 in this case.

Furthermore, even though the court below acknowledged that the value of the first real estate at the time of the principal registration of Defendant 1’s future was below the principal and interest of the claim, there is no evidence to acknowledge this in the records, and there is no evidence to prove that the above Defendant completed the settlement procedures, such as: (a) after evaluating the first real estate, which is a security, at an appropriate price; and (b) by using the proceeds to the principal and interest of the secured claim;

4. Ultimately, the court below did not have asserted from the parties in violation of the principle of pleading and the rules of evidence, and despite the lack of evidence to prove, since the first real estate of this case was transferred to the plaintiff's partial repayment of the plaintiff's obligation against the defendant 1, it cannot be deemed that the ownership of the first real estate of this case was finally transferred to the above defendant because it constitutes the exercise of the security right of attribution, and it did not have committed any violation of law which affected the conclusion

5. Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Chocheon-sung (Presiding Justice)