B. In a case where a creditor has made a provisional registration for the purpose of securing the obligation but failed to obtain repayment, thereby making a principal registration of transfer of ownership based on a provisional registration, whether the so-called weak meaning of transfer of security should be deemed to have been the

(c) In cases where a transfer for security has been made within a weak meaning, the time when the debtor may demand a provisional registration of the collateral and the cancellation of the principal registration based thereon;

D. Whether a lawsuit for future performance is permitted where a creditor is not expected to cooperate in a provisional registration made for the purpose of securing a claim, cancellation of a principal registration based thereon, or a new transfer of ownership, even if the debtor pays the secured obligation (affirmative)

B. If a creditor has made a provisional registration on any real estate for the purpose of securing the obligation, but failed to obtain repayment after the maturity, and thereby has made the principal registration of transfer of ownership on the basis of the provisional registration, such principal registration is made for the purpose of securing the obligation, unless otherwise expressly provided by the parties, and the principal registration is made for the purpose of securing the obligation, and it shall be deemed that the so-called weak meaning of transfer to security

C. In the event of a weak meaning of transfer for security, even if the time for repayment of an obligation is overdue, the obligor may at any time repay the obligation and request the obligee to cancel the principal registration on the basis of provisional registration and provisional registration, even if the time for repayment of obligation is after the obligee’s exercise of the security right and completed the settlement procedure

D. The debtor can file a claim for the cancellation of provisional registration and the principal registration based on such provisional registration, which was made to secure his/her obligation only if he/she pays his/her obligation first, or for a new registration of ownership transfer based on such provisional registration. However, even if he/she asserts that the provisional registration, etc. was made for the purpose of securing his/her obligation or claims for the amount of secured obligation, if the creditor is not expected to fulfill his/her obligation to cooperate in the public announcement of ownership even if he/she pays his/her obligation, it is necessary to file a claim in advance, and thus, he/she shall be allowed to file a lawsuit for the cancellation of the principal registration

The costs of appeal are assessed against the plaintiff.

The judgment of the court below on the point that the theory of lawsuit points out (the fact that Defendant 1 purchased the land in this case from the deceased non-party 1) shall be justified in light of the relation with the evidence as stated by the court below, and it shall not be deemed that there was an error of law by mistake of facts in violation of the rules of evidence, such as the theory of lawsuit, as in the process of the judgment of the court below. The issue is nothing more than criticism of the determination of the evidence belonging to the exclusive authority

2. Determination on the ground of appeal No. 2

A. The lower court dismissed the Plaintiff’s conjunctive claim on the following grounds.

In other words, on December 30, 1980, the plaintiff asserted as the conjunctive claim, and on December 30, 1980, the defendant 2 had a duty to execute the registration of transfer of ownership for reasons of restoration of the real name of the plaintiff, 4% per month for interest, and on March 29, 1981, provisional registration was made in the name of the defendant 2 for the purpose of securing bonds. The plaintiff purchased the land of this case from the defendant 1 on January 23, 1981 and received the registration of transfer as a result, and agreed that the plaintiff will accept the above loan obligation. Thus, the defendant 2 received the above loan and interest under the Interest Limitation Act from the plaintiff, and then requested the plaintiff to perform the registration of transfer of ownership for reasons of restoration of the real name of the plaintiff 1 on the land of this case. However, since the above provisional registration was made in the name of the defendant 2, and it is not necessary to complete the registration of transfer of ownership under the above name of the plaintiff 200 years for the above provisional registration.

B. The so-called "request for ownership transfer registration based on the restoration of the real name" is acknowledged where the ownership is already registered in his name to indicate the ownership of the pertinent real estate, or where the real owner of the pertinent real estate who acquired ownership by law directly claims the execution of the procedure for ownership transfer registration against the title holder on the current register in order to restore his/her name. This opinion was taken by the en banc Decision 89Meu12398 Decided November 27, 1990. In this case where the principal registration of ownership transfer was completed prior to the enforcement of the Provisional Registration Security Act (Act No. 3681 of Dec. 30, 1983), the above provisional registration under the name of defendant 2 was made for the purpose of securing the right, even if the ownership transfer registration was made for the purpose of securing the right, the ownership of the pertinent land can not be deemed to have been completely transferred to the defendant 2 in the external relation, and therefore, even if the ownership transfer registration was made under the above provisional registration under the name of defendant 2, the real ownership transfer registration cannot be deemed to have been cancelled.

The judgment of the court below which seems to have been identical to this purport is just, and even if the plaintiff agreed to take over the defendant 1's obligation against the defendant 2, such as the theory of lawsuit, unless there are special reasons such as the plaintiff's direct payment of the above obligation by the plaintiff, the plaintiff cannot directly file a claim for the transfer of ownership with the defendant 2 on the land of this case, unless there are special reasons such as the plaintiff's direct payment of the obligation from the plaintiff by the plaintiff. Thus, it is not acceptable to argue that the judgment of the court below is erroneous in the omission of judgment without making a proper deliberation on the fact of the above assumption of obligation.

C. Meanwhile, as in the instant case, if a creditor has made a provisional registration for the purpose of securing a claim, but failed to obtain reimbursement by the due date, and the principal registration of transfer of ownership based on the said provisional registration has been made, such registration is also made for the purpose of securing a claim, and it shall be deemed that the so-called “an obligation” established in the settlement procedure between the parties has been made (see, e.g., Supreme Court Decision 82Nu66, Oct. 11, 1983; Supreme Court Decision 84Nu933, Dec. 11, 1984; 86Nu150, Jun. 23, 1987; 87Nu62, Nov. 10, 1987; 200Da19879, Nov. 10, 1987; 200Da1987, Sept. 16, 197).

Nevertheless, the court below determined that the claim of this case seeking the registration of ownership transfer of the land of this case, on the condition of repayment of the above debt, did not meet the requirements for future performance, solely on the ground that the plaintiff did not fully repay the principal and interest of the loan for more than 10 years. Thus, the court below did not err by misapprehending the legal principles as to the timing of repayment of debt in the transfer for security or the requirements for future performance, but the above judgment of the court below is nothing more than additional. It is just in the judgment of the court below to the purport that the plaintiff cannot be deemed to be in a position to claim the registration of ownership transfer for the restoration of the true title, as it is nothing more than additional. Thus, the above illegality committed by the court below cannot be deemed to have affected the conclusion of the judgment. Ultimately, we cannot accept the conclusion of the judgment.

3. Therefore, the plaintiff's appeal is dismissed, and the costs of appeal are assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)