[소유권이전등기말소][집38(2)민,27;공1990.7.15.(876),1359]
In cases where a person with a provisional registration security and an obligor add a security by an agreement and trust the title of a mortgagee to a third party, whether an obligor may seek a cancellation of transfer registration against a third party, who is a direct registrant, due to a repayment of obligation (affirmative)
In the event that Gap provided Eul with real estate owned by Eul as a provisional registration security and borrowed money and Gap and Eul borrowed money, if Eul fails to repay the principal and interest of the loan by the due date, Eul and Eul shall make a registration of ownership transfer for the above real estate to the third party designated by Eul or Eul for the execution of the security right, and accordingly Eul made a registration of ownership transfer for the above real estate under Byung's name as a means to enforce the security right, if Eul made a registration of ownership transfer for the above real estate under Byung's name, this shall be a kind of deed of trust and it shall be deemed that Eul transferred the ownership of the above land in the form of a provisional registration security right, in addition to the provisional registration security right, in the form of a transfer for security, and it shall be deemed that Eul decided to trust the title of the mortgagee Eul to Byung by agreement between Eul, Eul and Byung, and therefore,
Article 186 of the Civil Act, Articles 372 of the Title Trust Act
[Defendant-Appellee] Attorney Shin Jae-il, Counsel for defendant-appellee
Postal I et al., the defendants et al., Counsel for the defendant-appellant and one other
Seoul High Court Decision 88Na34778 delivered on April 26, 1989
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
As to the grounds of appeal by the Defendants’ legal representative and Defendant E-Appellant’s legal representative:
1. According to the facts established by the court below, on January 13, 1971, the plaintiff borrowed 4.5 million won from Sick Line with interest rate of 4.5 million won, 5% per month, and 4.13. of the same year as the due date for repayment, and obtained a provisional registration of the preservation of the right to claim transfer of ownership on the land of this case owned by the plaintiff as a security. If the plaintiff fails to pay the principal and interest of the loan by the due date, the above defendant of the court below shall have completed the principal registration for the execution of the security right, or delivered one cash and one promissory note corresponding to the above borrowed money to the third party designated by him, and delivered the documents necessary for the registration of transfer of ownership along with the provisional registration to the defendant of the court below. When the plaintiff could not repay the principal and interest of the borrowed money by the due date, the plaintiff was newly issued with a certificate of personal seal impression at the request of the defendant of the court below for postponement, and the new registration of transfer of ownership was deferred by the same method.
In short, the court below recognized that the above fact-finding was made for the exercise of security right with respect to the above transfer of ownership in the name of the defendants. In light of the evidence adopted by the court below, the above fact-finding is acceptable and there is no violation of the rules of evidence, such as theory of lawsuit, or there is no error of law by misunderstanding the legal principles on the transfer of security. Although the defendant's objection representative has several materials since the real ownership of the above land belongs to the defendants, it cannot be adopted as a assertion submitted only in the trial
2. As seen earlier, if the lower court, a creditor and the Defendant who is a provisional registration security holder against the Plaintiff, delays the repayment of principal and interest, delayed the registration of ownership transfer in accordance with an agreement allowing the third party designated by him to conduct the registration of ownership transfer in the name of the Defendants for the execution of the security right, then if it was completed the registration of ownership transfer in the name of the Defendants, this would be a kind of deed of trust, in addition to the provisional registration
In addition, the title transfer relationship between the plaintiff, the defendant Lee Jong-tae, Sick Line, and the defendants shall be deemed to be the case where the defendant of the court below made a trust to the defendants in the name of the mortgagee. Thus, the relationship between the plaintiff and the defendants is established, so the plaintiff may seek cancellation of the ownership transfer registration directly against the defendants. The court below accepted the plaintiff's preliminary assertion and held that the plaintiff has a duty to cancel the ownership transfer registration of the land of this case when the plaintiff pays to the defendants the principal and interest of the debt recognized as a pre-payment condition for cancellation of provisional registration, the plaintiff shall not be deemed to have any errors in the misapprehension of legal principles as to the lack of reasons or the exercise of the right of subrogation.
Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Young-young (Presiding Justice)