[소유권이전등기말소등][집31(3)민,4;공1983.7.1.(707),961]
The scope of acceptance of a claim seeking cancellation of provisional registration, etc. on condition of the repayment of remaining debts
Where seeking the cancellation of provisional registration and ownership transfer registration with respect to the secured real estate on the ground that the total amount of the secured obligation is extinguished, and where part of the secured obligation remains, the court orders the cancellation of each of the above registrations on the condition that the remaining obligation is repaid, if part of the secured obligation is remaining, the court shall dismiss the part of the claim and order the performance of the procedure for cancellation of each of the above registrations on the condition that the remaining obligation is repaid. Thus, as long as the existence of the remaining obligation is deemed to exist, the court shall determine whether the remaining obligation is a part
Articles 229 and 230 of the Civil Procedure Act
[Defendant-Appellee] Plaintiff 1 et al.
Defendant Kim Jin-jin et al., Counsel for the defendant-appellant
Seoul High Court Decision 79Na2906 delivered on January 28, 1981
The judgment below is reversed and the case is remanded to Seoul High Court.
According to the reasoning of the judgment below, on the premise that the registration of transfer of ownership in the name of the defendant as to the real estate in this case was valid within the scope of the defendant's security against the plaintiff, the court below rejected the plaintiff's claim for the offset against the defendant since the above non-party occupied part of the real estate in this case's possession, and the period during which the plaintiff's claim for the refund of 6,000,000 won against the non-party was not completed, and the plaintiff's claim for the refund of 6,00,000 won against the non-party can not be viewed as being due to the expiration of the plaintiff's claim for the compensation against the defendant. The plaintiff's claim for the above offset against the non-party cannot be viewed as being offset against the plaintiff's claim for the remainder of the plaintiff's claim for the compensation against the non-party in this case.
However, in light of the records, if part of the secured obligation remains, on the ground that the entire amount of the secured obligation against the defendant was extinguished first, the plaintiff sought cancellation of provisional registration and ownership transfer registration under the name of the defendant with respect to the real estate in this case on the ground that the entire amount of the secured obligation against the defendant was extinguished, and the secondly, if part of the secured obligation remains, it is obvious that the plaintiff is seeking cancellation of each of the above registrations on the condition of repayment of the remaining obligation (see preparatory documents of December 6, 1978, stated at the 17th trial date). Thus, if part of the secured obligation remains, the court shall reject part of the plaintiff's claim and order the execution of the procedure
Therefore, as long as the court below deems that a part of the obligation secured by the real estate of this case remains, the court below should have deliberated and confirmed the amount of the remaining obligation and make a determination as to whether the claim of this case is partially accepted, but without doing so, the court below's rejection of all of the plaintiff's claim of this case on the grounds as mentioned above, which affected the scope of the plaintiff's claim of this case, which is the object of the lawsuit of this
Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court, which is the court below, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Young-ju (Presiding Justice)