[2] Where a registration made by a mortgagee to a third party is null and void, whether a request for cancellation by subrogation of the debtor is made (affirmative)

[3] Where a third party has gross negligence in believing that he/she has the right to represent the company, whether he/she is liable to the third party of the company (negative) and the meaning of gross negligence

[4] The meaning of the principle of trust and good faith and the requirements to deny the exercise of rights on grounds of violation

1. As to the plaintiff's assertion that the claim for cancellation registration against the non-party 1 et al. was extinguished

In a claim against a third party by exercising a creditor's subrogation right by a creditor, the third party obligor cannot set up a defense against the creditor, and in principle, the person who is entitled to invoke it when the extinctive prescription of the claim is completed is only the person who is entitled to benefit of prescription, and the third party obligor cannot exercise it (see Supreme Court Decision 2001Da10151, Feb. 12, 2004, etc.).

In light of the above legal principles, the plaintiff's assertion that the lawsuit of this case brought by subrogation of the non-party 1, etc. for the purpose of preserving the above right on the ground that the extinctive prescription of the plaintiff's provisional registration and the right to claim cancellation of ownership transfer registration against the non-party 1, etc. has expired not only after the expiration of ten years from the due date of the debt secured by the above provisional registration, but also after the lapse of ten years from the due date of the debt guaranteed by the above provisional registration, is unlawful. The court below's reasoning differs

2. As to the allegation that the Plaintiff’s fulfillment period for the preserved right has not yet arrived

Where an ownership transfer registration has been made for the purpose of securing a liability, the obligor may demand that the obligee repay the obligation such as principal and interest, and that the obligee cancel the ownership transfer registration even after the period of reimbursement expires, and the obligor may seek implementation of the procedure for cancellation of ownership transfer registration against the third party by subrogation of the obligee for the reason that the cause is null and void, even before the obligor performs the obligation (see Supreme Court Decision 85Meu1792, Jan. 19, 198, etc.).

As long as the Plaintiff has the right to claim cancellation of provisional registration and transfer of ownership in the name of Nonparty 1, etc. under the condition that he pays the principal and interest of the secured obligation as prescribed by the previous lawsuit against Nonparty 1, etc., the judgment of the court below that the Plaintiff may seek cancellation of the registration in the name of the Defendants, which was made in succession after giving subrogation to Nonparty 1, etc. even before the payment of the principal and interest, is justifiable in light of the above legal principles.

3. As to the assertion that the Defendants acquired effective rights from Nonparty 1, etc., the mortgagee.

The court below held that the agreement between the plaintiff, the non-party 1, and the defendant 2 is null and void since it was concluded by the non-party 2 who is not authorized to represent the plaintiff. Thus, the registration of transfer of ownership made by the defendant 2 pursuant to the agreement of this case is null and void, and the remaining defendants' registration made in sequence by this case is also null and void, and even if the agreement of this case was excluded from the plaintiff in light of the circumstances stated in its reasoning, it cannot be deemed null and void as a matter of discretionary disposal of the real estate of this case to the defendant 2. In light of the facts established by the court below and the evidence duly admitted, the above judgment of the court below is just and acceptable, and there is no error of law such as misconception of facts or misapprehension

4. As to the assertion that the instant agreement is effective to the Plaintiff in accordance with the legal principle of the apparent representative director under Article 395 of the Commercial Act

In order to establish the liability of a company due to the act of an apparent representative director under Article 395 of the Commercial Act, it does not require negligence other than that of a third party. However, the purport of the provision is to conduct a transaction by using a name that may be deemed to have the power of representation of a company in appearance, which is not the representative director of the company, and to protect the third party in a case where there is a cause attributable to the company in connection with the occurrence of such appearance, thereby promoting the trust and safety of commercial transactions by protecting the third party in good faith. Such a third party's trust should be reasonable. Thus, even if the third party believed that he/she has the authority to represent the company in the course of conducting such transaction to a director who is not the representative director of the company, even if he/she believed that the third party has the authority to represent the company, if there is gross negligence, the company is not liable to the third party, and the third party's gross negligence here means that the third party's act is not within the scope of the representative director's authority of representation, and thus it is not necessary to protect the third party.

In light of the circumstances stated in its holding, the court below held that the agreement of this case cannot be deemed to have been effective to the plaintiff on the ground that it is reasonable to deem that the non-party 2 referred to as the plaintiff's representative liquidator qualification, but there was no reason attributable to the plaintiff or defendant 2, who is the party to the agreement of this case, was well aware of the fact that the non-party 2 was not entitled to represent the plaintiff. In light of the above legal principles and the facts duly confirmed by the court below, the above judgment of the court below is just and acceptable, and there was no error in the misapprehension of legal principles as to the attribution of the liability of the representative director as alleged in the grounds for appeal (the attorney of the defendant 1 shall be liable for the act of the representative director in relation to the non-party 1, etc., but the third debtor cannot oppose the creditor's defense against the creditor

5. As to the assertion that the Plaintiff’s exercise of right is not permissible as it violated the principle of good faith

The principle of trust and good faith under the Civil Act refers to an abstract norm that a party to a legal relationship shall not exercise his right or perform his duty in a way that violates equity or reliance by taking into account the other party’s interest. In order to deny the exercise of right on the ground that the exercise of right is in violation of the principle of trust and good faith, the other party should have provided good faith to the other party or objectively regarded it as being in a legitimate state, and the other party’s exercise of right against the other party’s good faith should have reached such an irrecoverable level in light of the concept of justice (see Supreme Court Decision 2003Da18401, May 26, 2006, etc.).

In light of the above legal principles, the court below's rejection of the defendants' assertion on the ground that the plaintiff offered good faith as not to make a claim of this case against the defendants, or that the defendants had good faith, is not sufficient to deem that the defendants did not make a claim of this case against the defendants, and there is no error of law by misapprehending the legal principles as to

6. As to the assertion that the court below erred by misapprehending the defendants' simultaneous performance defense or not exercising his/her right of explanation

The records reveal that the Defendants asserted simultaneous performance only with respect to the Plaintiff’s claim of this case. Thus, the court below's order that Defendant 2 paid the above amount to the Defendants by Nonparty 1, etc. at the same time, and the registration procedure for cancellation of this case’s real estate is proper. In so doing, contrary to what is alleged in the grounds of appeal, the court below did not err by misunderstanding the Defendants’ defense contents or by failing to exercise their right of explanation.

7. As to other grounds of appeal

The defendants' other grounds of appeal are without legitimate legal basis that the registration in the name of the defendants is valid, or that they dispute the preparation of evidence and fact-finding, which are the exclusive authority of the fact-finding court, and thus cannot be accepted.

8. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)