[소유권이전등기말소][공1993.6.15.(946),1448]
A. Damages for delay after the due date for payment without any interest agreement in a loan for consumption bearing interest (=agreement interest rate)
(b) Effective effects of the filing of a lawsuit telephone, and delay damages where there is no separate provision on delayed damage after the due date for payment under the provisions on the filing of a lawsuit telephone (=legal interest rate)
A. In the event that no interest agreement exists in a loan for consumption, it is the intention of a party to view that the initial agreement will be paid even after the maturity expires, unless there is a special expression of intention.
B. In a case where a settlement has been made for the purpose of securing the security of a loan for consumption, the settlement becomes a creative effect, so it cannot contest the effect of the settlement with the reasons prior to the settlement, and if the settlement is made with the reason prior to the settlement, the rights and obligations relationship based on the previous legal relationship shall be terminated. Therefore, unless otherwise stipulated in the settlement clause, the delayed damage after the due date shall be based on the statutory interest rate.
(b)Article 397 of the Civil Procedure Act, Article 206 and Article 356 of the Civil Procedure Act;
A. Supreme Court Decision 69Da2269 delivered on March 10, 1970 (Gong1992, 1993) 77Da20481 delivered on June 8, 1990 (Gong1990, 1443) 91Da28528 delivered on May 26, 192 (Gong192, 1993)
[Judgment of the court below]
Defendant 2, Defendant 1 et al., Counsel for the defendant-appellant
Seoul High Court Decision 79Na3545 delivered on October 10, 1980
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The grounds of appeal are examined.
1. Where there is no interest agreement after the due date for a loan for consumption, it is deemed that the original agreement should be paid even after the due date for a loan for consumption expires, unless there is a special expression of intention, to be the intention of a party in a lending relationship (see Supreme Court Decision 69Da2269, Mar. 10, 1970). However, in case where a settlement is made before the due date for the purpose of securing the security of a loan for consumption, if the settlement is made after the due date for the purpose of securing the security of a loan for consumption, the settlement becomes effective after the due date for the reasons before the settlement. If the settlement is made after the due date for the reasons before the settlement, the settlement cannot be asserted, and if it is made, the rights and obligations relationship based on the previous legal relationship shall be terminated (see Supreme Court Decision 7Da235, Jun. 7, 197). This case’s agreement is reasonable in terms of the opinion that the legal interest rate should not be extended after the due date for a provisional registration being adopted and its dissenting opinion.
2. According to the records, the court below's determination that the plaintiff paid the principal and interest of the settlement obligation, and the defendant sold the real estate, which is the collateral, to the non-party despite the duty to return it to the plaintiff, and the non-party's purchase of the real estate, which was actively involved in the defendant's act of worship, is acceptable, and there is no violation of the rules of evidence such as the theory of lawsuit in the process of fact-finding, nor there is no ground for appeal.
Therefore, the appeal shall be dismissed and the costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeon Soo-hoon (Presiding Justice)