[2] In a case where the amount of liquidation money which a creditor has subjectively assessed falls short of the appraised amount of objective liquidation, the validity of notice of exercise of security right (effective)

[2] Even if the amount of the liquidation money appraised by the creditor's own, is not less than the appraised value of the objective liquidation money, it does not affect the validity as a notification of the exercise of a security right or the progress of the liquidation period. However, as the debtor, etc. refuses the registration of transfer of ownership of the target real estate and the performance of the obligation to deliver until the liquidation money is paid fairly assessed, it is only possible for the creditor to claim for the cancellation of provisional registration completed for the purpose

1. The judgment of the court below

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that each provisional registration (hereinafter "the provisional registration of this case") was completed on October 27, 1992 in the name of the defendant (Counterclaim Plaintiff; hereinafter "the defendant") on each of the real estate (hereinafter "the real estate of this case") in the name of the defendant (Counterclaim Plaintiff; hereinafter "the defendant") at the time of original adjudication owned by the deceased non-party 1 (hereinafter "the deceased"), a party to the lawsuit against the plaintiff (Counterclaim defendant; hereinafter "the plaintiff"), after cooking evidence as stated in the judgment, was as follows or it was admitted.

A. ① The above deceased, on November 10, 1990, sold to the non-party 108, 108, the same name tag located in Ansan-si, Ansan-si, and received 25,000,000 won as down payment and intermediate payment. On the ground that the above commercial buildings were double sold to the deceased, Non-party 1, who attempted to file a complaint against the deceased, was compensated for 75,000,000 won on behalf of the deceased on June 30, 1989 on behalf of the deceased, and the deceased agreed to pay the same amount after renting the same name apartment at the same place as he constructed. ② On November 10, 1990, the deceased provided 23,000,000 won to the deceased to the non-party 10,000,0000 won to the non-party 1,000,0000,0000,000,000,000.

B. Around October 192, 1992, the deceased demanded that he be provided a security to the deceased, and the deceased and the Cho-hee demanded that he be provided a security. The deceased and the Cho-hee agreed that he be additionally lent 40,000,000 won to the deceased, taking into account the interest during each of the above A, etc. as to each of the above amounts, the deceased's debt against Cho-hee shall be determined as 400,000,000 won, and interest shall be paid in the future with its principal. However, there is no evidence to support that the deceased agreed to pay interest at the rate of 3% per month (the above 40,000,000 won as principal and interest on the principal and interest thereon). The deceased agreed to the provisional registration of this case as to the real estate of this case under the name of the husband of the defendant Cho-hee for the purpose of securing the principal and interest thereon.

C. At the time of the above agreement, the amount of senior claim secured by it was approximately KRW 700,000,000 if deducted from the market price of the real estate in this case.

D. Meanwhile, with respect to the money that the Defendant paid to the exclusive materials, the deceased agreed to reimburse the amount of KRW 200,000,000,000 with respect to the money that the deceased paid to the exclusive materials. ② The deceased decided to compensate the amount of KRW 200,000,000 with respect to the money that the deceased provided a commercial building to the Lee Jong-hee and withdrawn the complaint. ③ On the delegation of the deceased, the deceased was delegated to the deceased, and ③ around December 190, around 199, around May 199, around January 1, 1992, the deceased spent the expenses in the course of trying to sell the above apartment name at KRW 230,00,000, the deceased paid the amount to KRW 230,000 on December 12, 1990; ② The deceased claimed that the amount loaned to the deceased was the sum of KRW 10,000,000 and KRW 17,009.

E. As to the instant real estate, Cho-hee received a certificate of personal seal impression, resident registration certificate copy, resident registration certificate copy, and resident registration abstract, etc. from the deceased, and prepared a trade reservation certificate (Evidence B No. 1 and 2) as if he had promised to sell and purchase the instant real estate, and completed the instant provisional registration with respect to the instant real estate, contrary to the agreement.

The court below held that the provisional registration of this case was completed for the purpose of securing the obligation to return principal of 400,000,000 won and interest thereon under the quasi-Loan Agreement between Maok and the Deceased, and it constitutes the provisional registration subject to the Provisional Registration Security Act. Since there was no agreement between the parties as to the interest rate, the interest rate should be calculated at the rate of 50% per annum as stipulated in the Civil Act. The above secured obligation is partly offset by the repayment obligation of 168,075,00 won, which was borne by Maokhee with respect to the increase in deposit for the apartment name, and it cannot be viewed that the provisional registration of this case was completed with 00,000 won, and it cannot be viewed that the provisional registration of this case was completed with 90,000 won on April 25, 1995 and the provisional registration of this case, and it cannot be viewed that the defendant's claim for the provisional registration of this case was made for the cancellation of the provisional registration of this case. The defendant's claim for the provisional registration of this case cannot be viewed as the provisional registration of this case.

2. Judgment of party members

A. As long as the authenticity of a disposal document is recognized as a matter of principle, the court shall recognize the existence and content of the expression of intent as stated, unless there is any clear and acceptable reflective evidence that denies the contents of the statement (see Supreme Court Decision 94Da16601, Feb. 10, 1995). Meanwhile, in a case where there is a special agreement different from the contents of a disposal document, the court may recognize part of the contents of the statement differently (see Supreme Court Decision 95Da45125, Apr. 12, 1996). In particular, the issue of whether a provisional registration is a provisional registration is a security registration is not formally determined by the type of documents given and received at the time of indication or registration on the registry, but is not formally determined by the substance of the transaction and the interpretation of the intent of the parties concerned (see Supreme Court Decision 91Da36932, Feb. 11, 1992); in comparison with the records and records, the provisional registration in this case is a security provisional registration under the Act, and its amount of 4000 won.

In addition, the court below is just in holding that the above deceased and Chook-hee agreed to pay interest at the rate of 3% per month in the future at the time of the above agreement, and there was no agreement on the interest rate at the time. According to the facts duly admitted by the court below, the above quasi-loan agreement on loans for consumption set the principal amount of the obligations newly established by considering all the interest, delay damages, etc. in addition to the principal amount of the previous obligations as 400,000 won in addition to the principal amount of the previous obligations. Thus, unless the future interest rate is separately stipulated in the quasi-loan agreement, the subsequent interest or delay damages shall be calculated at the statutory interest rate.

As discussed above in the fact-finding or judgment of the court below, there is no error in the misapprehension of legal principles as to the probative value of disposal documents, violation of the rules of evidence, or incomplete hearing, etc.

B. The notification of the execution of a provisional registration security right to an obligor, etc. in order to acquire ownership of real estate for the purpose of security by exercising a provisional registration security right is sufficient if the obligee notifies the obligor, etc. of the appraised value of the liquidation money by specifying the value of real estate for the purpose of security at the time of notification which the obligee assessed subjectively, and the secured claim amount. Even if the amount of liquidation money assessed in that manner does not reach the appraised value of the objective liquidation amount, it does not affect any effect as a notification of the execution of the security right or the progress of the liquidation period. However, it is reasonable to interpret that the obligor, etc. can only seek cancellation of provisional registration completed for the purpose of security right by paying the total amount of the secured debt to the obligee and claiming for the cancellation of provisional registration completed for the purpose of security right (see Supreme Court Decision 92Da1043, 1050 delivered on September 1, 19

According to the records, the defendant, through a preparatory document dated May 29, 195 of the court below, on the premise that the amount of the claim against the above deceased is KRW 700,00,000,00, the market price at the time of reservation of the real estate of this case is KRW 1,972,762,00,00. Here, if the defendant requests the amount of claim of KRW 1,552,679,112 which takes precedence over the defendant's claim, the remaining value is KRW 420,08,00,000, and it does not reach the amount of the above secured claim. Thus, even if the market price of the real estate of this case was stated at the time of execution of the provisional registration on the premise that it was 70,00,000,000,000,000,000 at the time of execution of the provisional registration on the premise that the market price of the real estate of this case was 30,000,00,000.

Therefore, the court below is deemed to have notified of the execution of a security right under the Provisional Registration Security Act with the statement in the above preparatory documents. Furthermore, in the event that the plaintiffs raised a simultaneous performance defense on the ground that there was no legitimate payment of liquidation amount, the market price of the real estate of this case at the time of notification of the execution of the security right and the amount of senior claims, etc. (the amount of the secured debt is determined by the court below) shall be examined and determined, and the court shall order the plaintiffs to implement the principal registration procedure based on the provisional registration of this case in exchange for the payment of reasonable liquidation amount, and in the event that the plaintiffs fail to raise a simultaneous performance defense, the court below shall accept the defendant's counterclaim claim as it is, notwithstanding the fact that the court below did not notify of the execution of the security right with different opinion, and dismissed the defendant's counterclaim claim and the fact that the court below did not complete all deliberation by misunderstanding the legal principles as to notification of the execution of the security right

3. Therefore, the part concerning the counterclaim in the judgment of the court below is reversed, and that part of the case is remanded to the court below. The defendant's appeal as to the principal lawsuit is dismissed, and the costs of appeal as to the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Ho-ho (Presiding Justice)