[부동산가처분이의][집19(1)민,202]
In the event that “A” has the expiration of the period of reimbursement, the claim “B” shall be appropriated for its secured real estate as “B”, and if the ownership of the real estate (i.e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e., the e.,
Since a real estate offered as security for transfer cannot be claimed for cancellation before it is repaid of its obligation, making a provisional disposition to preserve the right to claim cancellation on the premise that the registration is null and void of cause does not have the right to preserve from the beginning, and even after the provisional disposition is registered, it cannot be said that the creditor's disposition infringes on the right to preserve the object of provisional disposition premised on the invalidity of cause as long as the disposition by the creditor is legitimate.
Article 714 of the Civil Procedure Act
Applicant
Respondent
Seoul High Court Decision 70Na607 delivered on December 11, 1970
The appeal is dismissed.
The costs of appeal shall be borne by the applicant.
The ground of appeal No. 1 by the applicant's agent is examined.
According to the reasoning of the judgment of the court below, 1350,000 won shall be repaid to the respondent until June 10 of the same year, but in order to secure this obligation, 140,000 won shall be delivered to the respondent with documents necessary for passing the registration of ownership transfer as well as the maximum debt amount of 1.4 million won shall be delivered to the respondent through the registration of ownership transfer to secure this obligation, while the respondent shall not pass the registration of ownership transfer until June 10, 1967, and if the maturity is over, she shall not pass the registration of ownership transfer to the Respondent's name or sell to the third party with the ownership of the real estate at the time of the registration of ownership transfer or from the price or sale to the third party, 1350,000 won shall be deducted from the Respondent's obligation to pay the above settlement amount and 2.50,0000 won shall be deducted from the Respondent's obligation under the name of the Respondent and the Respondent's obligation to return the real estate.
We examine the second ground for appeal.
According to the reasoning of the judgment of the court below, even if the agreement between the claimant and the respondent exceeds the obligation like the theory of lawsuit, the registration of transfer of ownership in the name of the respondent is valid registration to the extent that it guarantees the respondent's obligation to the third party, and in relation to the third party, the ownership is transferred to the respondent on trust, and the court below's decision was justified and denied the fact that the transaction between the respondent and the non-party is false or fictitious, and therefore there is no error in the judgment of the court below
The ground of appeal No. 3 is examined.
As mentioned above, it is valid to register the transfer of ownership in the name of the respondent on June 16, 1967, and it is not effective to register the transfer of ownership in the name of the respondent notwithstanding the provisions of Articles 607 and 608 of the Civil Code, and since the registration of transfer of ownership in the name of the non-party was not completed, the same non-party's legitimate acquisition of ownership is not unlawful. Thus, even if the applicant deposits the entire principal and interest of the debt lawfully on December 10, 1969, even if he deposits the principal and interest of the respondent on the premise that the registration in the name of the respondent is null and void, the provisional disposition of this case, which takes the right to claim the cancellation of the registration in the name of the respondent as the preserved right, was created without the original preserved right, and even if the applicant registered with the provisional disposition upon the approval of the provisional disposition, it is not possible to request the cancellation of the registration in the name of the respondent prior to the repayment of the debt to the respondent (In addition, the applicant's revocation of the above real estate itself cannot be claimed).
Therefore, the appeal is dismissed and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices of the Supreme Court (Presiding Judge) Park Jae-dong (Presiding Judge)