[소유권이전등기][공1987.12.1.(813),1700]
(a) Validity of a protocol of compromise contrary to compulsory provisions;
(b) Claim for a lawsuit seeking the cancellation of registration concerning the secured real estate on the ground that the secured obligation is fully repaid;
A. If a judicial compromise is established under Article 206 of the Civil Procedure Act, even if the content of the compromise violates the mandatory law, it is merely a defect in the judicial compromise, and thus, it is not a separate issue and it cannot be asserted that the compromise is null and void. This legal principle also applies to the compromise under Article 355 of the Civil Procedure Act.
B. In the event that an obligor claims the implementation of the procedure for provisional registration and the procedure for registration of cancellation of ownership transfer on the ground of the full repayment of the secured obligation, and the obligor deposits the amount claimed as the principal and interest, but it is revealed that the remaining amount remains because the opinion as to the amount of obligation remains without extinguishing the entire amount of obligation, the purport of the obligor’s claim is also included in the purport that the obligor reimburse
Articles 206, 335, and 229 of the Civil Procedure Act
A. Supreme Court Decision 74Da2030 delivered on March 11, 1975, 74Da634 delivered on November 11, 1975, and 81Meu1247 delivered on December 28, 1982. Supreme Court Decision 80Da2270 delivered on September 22, 1981, 86Da981 delivered on April 14, 1987
Attorney Lee Jae-gu, Counsel for the plaintiff-appellant
Defendant 1 and 2 Defendants, et al., Counsel for the plaintiff-appellee and the defendant-appellant's judgment
The part of the lower judgment’s ancillary claim against Defendant 1 and Defendant 3 is reversed, and that part of the case is remanded to the Seoul High Court.
The Plaintiff’s appeal against Defendant 1 and Defendant 3 and the appeal against Defendant 2 are dismissed.
The costs of appeal dismissed shall be assessed against the plaintiff.
As to the grounds of appeal by the Plaintiff, the lower court, based on its adopted evidence, acknowledged the fact that the Plaintiff purchased the original one parcel of land from this school district and completed the registration of ownership transfer in the future. Nonparty 1 sold 171,700,000 won to Defendant 2, and paid 20,000 won as down payment, at the above Defendant’s request before the remainder payment, agreed to cancel the sales contract and transfer the land equivalent to the contract amount in lieu of returning the down payment by Nonparty 1 at the above Defendant’s request before the remainder payment, and completed the registration of ownership transfer to the above Defendant. Furthermore, the lower court, even though Defendant 2 knew that the land recorded in the 1,2 list of land was originally trusted to Nonparty 1, the lower court, at the original judgment’s 1,2 list of land, did not err by either selling the above land to Nonparty 1 or disposing of the said land in violation of the agreement to divide it into 00,000 won or by taking advantage of the intention to divide it into account 0000.
2. Article 206 of the Civil Procedure Act provides that the protocol of compromise shall have the same effect as that of a final and conclusive judgment when the protocol of compromise is entered. Thus, even if the content of the protocol of compromise is contrary to the compulsory law if it is established, it is merely a defect in the judicial compromise, and thus, it cannot be asserted that the protocol of compromise is null and void because it is merely a defect in the judicial reconciliation, and thus, it cannot be asserted as a separate matter. This legal principle also applies to the compromise under Article 355 of the Civil Procedure Act (see Supreme Court Decision 74Da2030, Mar. 11, 1975; Supreme Court Decision 74Da634, Nov. 11, 1975; Supreme Court Decision 81Meu1247, Dec. 28, 1982).
The court below acknowledged the completion of the registration of transfer of ownership by Defendant 1 and Defendant 3 on the ground that, in order to secure Defendant 1 and Defendant 3’s obligation, the above Defendants made provisional registration as to the land indicated in the first list at the time of original adjudication, and agreed that the above Defendants will execute the principal registration procedure based on provisional registration unless they are repaid by the due date. However, while Nonparty 1 did not pay the loan by the due date, the court below agreed to make the principal registration based on the claimant’s telephone, if they did not pay the loan by the due date after the due date, it did not pay the loan by the due date. Since Defendant 1 and Defendant 3 did not pay the loan by the due date until the due date, the above Defendants did not pay the loan by the due date, and the registration of transfer of ownership in the future of the above Defendants was made based on the complaint telephone between the above Defendants and Nonparty 1, it did not err in the misapprehension of the legal principles as seen earlier.
3. If it is found that the Plaintiff deposited the amount claimed by the Plaintiff as principal and interest in the course of claiming the implementation of the procedures for provisional registration and the procedure for cancellation of ownership transfer registration on the ground that the principal and interest was fully repaid, but the remaining amount remains due to the difference in opinion as to the amount of debt, the purport of claiming the cancellation of each of the above registrations is included in the Plaintiff’s claim (see, e.g., Supreme Court Decision 80Da2270, Sept. 22, 1981; Supreme Court Decision 86Meu981, Apr. 14, 1987).
The court below rejected the plaintiff's claim that the provisional registration made by the defendant 1 and the defendant 3 for the purpose of securing the claim and the cancellation of the registration of transfer of ownership on the ground that the plaintiff deposited the amount of the secured obligation in full on behalf of the non-party 1 as the preliminary claim for the first time, on the ground that the deposit does not extend to the principal of the secured obligation of KRW 26,100,000 based on the telephone for filing a lawsuit, and the additional loan of KRW 16,00,000 based on the additional loan, and the above deposit cannot be deemed a valid deposit, and therefore, the plaintiff's claim based on the extinguishment of the security right is groundless. As seen above, the court below should determine and determine the remaining obligation, and have the plaintiff discharged the obligation, and then have the above defendant et al. cancel each registration.
Since the court below's failure to take such measures is a result of erroneous understanding of the plaintiff's claim, it is justified to argue that it constitutes Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.
Therefore, among the judgment below, the part of the first preliminary claim against the plaintiff 1 and the defendant 3 cannot be reversed without further determination.
Therefore, among the judgment of the court below, the plaintiff's conjunctive claim against the defendant 1 and 3 is remanded to the court below. The plaintiff's appeal against the defendant 2 is dismissed. The costs of appeal against the defendant 2 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Kim Jong-chul (Presiding Justice)