[소유권이전등기말소][공1996.6.15.(12),1694]
[1] The point of time to determine whether the value of the property exceeds the principal and interest of the loan as the grounds for invalidation of the promise to return the substitute
[2] The case reversing the judgment of the court below that the payment in substitutes is valid on the ground that the value of the land at the time of the registration of transfer merely did not reach the principal and interest of the loan, where the debtor completed the registration of ownership transfer according to the promise to return substitutes
[1] Where the debtor agreed to transfer the land owned by the debtor to the creditor as a payment for the principal and interest of the loan in lieu of the principal and interest of the loan, and later registered the ownership transfer to the creditor as a real payment for the loan in lieu of the principal and interest of the loan, the agreement between the debtor and the creditor is a promise to return the substitute as stipulated in Articles 607 and 608 of the Civil Code. Thus, if the value of the property exceeds the aggregate amount of the principal and interest of the loan because Articles 607 and 608 of the Civil Code are applied, it shall not be effective, and whether the value of the property exceeds the aggregate amount of the loan and the interest attached thereto shall not be determined as at the time of the transfer of ownership
[2] The case reversing the judgment of the court below that the creditor's ownership transfer registration of the land is valid as a substitute payment, on the ground that although the value of the land at the time of the promise exceeds the aggregate of the loan principal and interest in order to determine whether the return of substitute land is valid or not, the creditor should have deliberated on whether the value of the land at the time of the promise exceeds the aggregate of the loan principal and interest, the creditor merely recognizes the fact that the aggregate of market value at the time of the transfer of ownership transfer registration does not exceed the aggregate of the loan principal and interest until it
[1] Articles 607 and 608 of the Civil Act / [2] Articles 607 and 608 of the Civil Act
[1] [2] Supreme Court Decision 91Da11223 delivered on December 24, 1991 (Gong1992, 667) / [1] Supreme Court Decision 74Da16581 delivered on December 10, 1974 (Gong1975, 8239), Supreme Court Decision 75Da1551, 1552 delivered on September 28, 1976, Supreme Court Decision 94Da38113 delivered on February 17, 195 (Gong195, 1416)
Plaintiff (Attorney Kang Tae-hun et al., Counsel for the plaintiff-appellant)
Defendant (Law Firm Dasan, Attorneys Yoon Young-young et al., Counsel for the defendant-appellant)
Suwon District Court Decision 94Na10235 delivered on June 23, 1995
The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.
The grounds of appeal by the Plaintiff’s attorney are examined together (to the extent of supplement in case of the Plaintiff’s supplemental appellate brief submitted after the lapse of the submission period), to the extent of supplement in case of the above grounds of appeal.
1. Summary of the judgment below
According to the reasoning of the judgment below, when the plaintiff borrowed 3,00,00 won from the defendant on September 11, 1978 to the above 3,375,00 won of the loan until November 26 of the same year (the sum of the principal for the loan of 3,00,000 won and interest at the rate of 5% per month from the borrowing date to the maturity date), the court below held that the plaintiff agreed to transfer each of the above land of this case to the defendant as payment for the loan of the principal and interest on the above loan of this case to the defendant on the guarantee of the above loan of the above loan of this case as the provisional registration for transfer of ownership was made on September 16, 1978 under the premise that the above loan of this case was not made until the above 10th of the loan of this case, and that the plaintiff did not have to pay the principal and interest on each of the above land of this case to the defendant on the condition that the above loan of this case was not made until the above 1090th of the loan of this case.
2. Judgment on the grounds of appeal
However, as determined by the court below, if the plaintiff agreed to transfer each of the lands of this case to the defendant as a substitute payment for the above loan principal and interest on each of the lands of this case to the defendant as a security for the above loan principal and interest, and thereafter registered the ownership transfer in lieu of the above loan principal and interest, the above agreement between the plaintiff and the defendant shall be a promise to return substitute land under Article 607 of the Civil Code. As such, Articles 607 and 608 of the Civil Code shall apply, and if the value of the property exceeds the aggregate of the loan principal and interest, it shall not be deemed as at the time of the time of the promise, and as at the time of the time of the transfer of ownership, it shall not be deemed as at the time of the time of the above promise, and as at the time of the above determination, the premise that the ownership transfer registration in this case shall be valid and payable to the defendant as at each of the above Articles 607 and 608 of the Civil Code shall be null and void (see Supreme Court Decisions 65Da892, Sept. 6, 1976).
Therefore, the court below should have deliberated whether the value at the time of the promise to return the substitute land of this case exceeds the aggregate amount of the principal and interest on the loan in order to determine whether the reservation to return the substitute land of this case is valid, but the court below did not reach this conclusion and recognized only the fact that the aggregate amount of the market value of each land of this case at the time of the registration of ownership transfer in the future of the defendant does not reach the aggregate amount of the principal and interest on the loan of this case until such time. The court below determined that the registration of ownership transfer in the future of the defendant for each land of this case is valid as payment in lieu of substitute land of this case cannot be said to have erred by misapprehending the legal principles as to the validity of the reservation to return substitute land of this case under Articles 607 and 608 of the
3. Therefore, the judgment of the court below without examining the remaining grounds of appeal shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating judges.
Justices Park Jong-ho (Presiding Justice)