[소유권이전등기말소][공1980.10.1.(641),13081]
The validity of the registration of transfer of ownership made in violation of Article 607 or 608 of the Civil Act
If the value of the real estate at the time of the promise for payment in kind exceeds the total amount of principal and interest on the debt, the promise for payment in kind itself can be deemed as a so-called weak transfer contract even if it is null and void.
Articles 607 and 608 of the Civil Act
Supreme Court Decision 72Da1633 delivered on November 14, 1972, 74Da1658 delivered on December 10, 1974
Plaintiff
Defendant Kim Jong-he, Counsel for the defendant-appellant
Gwangju District Court Decision 78Na254 delivered on March 20, 1980
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
(1) The defendant's attorney's first ground of appeal is examined.
According to the reasoning of the judgment below, the court below acknowledged that an agreement was made between the plaintiff and the defendant as to the real estate in this case, and accordingly, the ownership transfer registration was made in the defendant's future, and judged as to the plaintiff's assertion that the real estate value at the time of the promise is invalid in excess of the total amount of the principal and interest of the principal and interest of the principal and the interest of the real estate in this case. However, according to the evidence, even if the price of the real estate at the time of the promise exceeds the total amount of the principal and interest of the principal and the interest of the real estate in this case, it can be viewed that the promise for payment in this case was null and void, at least a so-called "assumed contract for transfer in security". This interpretation
(2) We examine the second ground for appeal.
In this case where the defendant's refusal to cancel the ownership transfer registration due to the payment in kind, the ownership transfer registration cannot be recognized as a payment in kind, and only has the effect of trust transfer for the purpose of the security, and the judgment of the court below which accepted the plaintiff's preliminary claim that the ownership transfer registration is cancelled due to the repayment of the principal and interest amount recognized as the principal and interest, is justified, and there is no misapprehension of the legal principles as to the funeral performance lawsuit
(3) The above grounds of appeal are examined.
The Defendant’s assertion that the Defendant assumed the Plaintiff’s obligation to lease on a deposit basis against the lease on a deposit basis for the lease on a deposit basis of the instant real estate is apparent that the Defendant acquired the instant real estate by payment on a deposit basis. As seen in the instant case, as long as the Defendant failed to achieve the purpose of payment on a deposit basis, the Defendant did not include the money on a deposit basis in the principal and interest of the instant case (excluding that the amount equivalent to the money on a deposit basis already paid may be separately claimed), and there is no error of misapprehending legal principles as to the secured obligation
All of the arguments are without merit, and the costs of the appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating judges.
Justices Dra-ro (Presiding Justice)