[소유권이전등기][집25(3)민171,공1977.12.15.(574) 10379]
Method of registration of transfer of ownership in the transfer of real estate for security
As long as the sale has the object of security, the transfer of ownership registration is either a sale with the special agreement for repurchase or a transfer of security.
[Judgment of the court below]
Attorney Lee Jong-il, Counsel for the defendant-appellant
Gwangju High Court Decision 76Na49 delivered on May 12, 197
The judgment below is reversed and the case is remanded to the Gwangju High Court.
As to the Grounds of Appeal:
(1) According to the records, a party member’s entire purport of both parties’ documentary evidence and pleading, and the registration of ownership transfer from the plaintiff to the defendant on January 28, 1971 on the real estate of this case was made on the ground of sale and purchase on January 9, 1971, it is clear that the plaintiff was first responsible for the plaintiff at the time, and the defendant was given a loan from the Japanese bank to the plaintiff and appropriated the above amount to the above compensation for survivors, and the registration of ownership transfer was made in order to secure the defendant’s right to indemnity against the plaintiff (in particular, see evidence No. 9 and evidence No. 5-1).
(2) However, in order to achieve the economic purpose of collateral, there are two registration methods to transfer real estate to the creditor. However, it is one of the simple transfers of sale with special agreement for repurchase.
The latter is the case of transfer for security recognized by the case law. Therefore, the sale of this case should be one of the two cases.
(3) The court below's decision that the sale on January 9, 1971 (the sale in this case) did not constitute a sub-sale with the approval of the Minister of Home Affairs and rejected the plaintiff's preliminary claim is justifiable. However, as mentioned above, if the sale in this case became the object of a security and falls under any one of the above two registration methods, the court below did not have any evidence to acknowledge that the sale in this case would constitute a special contract for repurchase or the remaining transfer in this case, and thus, rejected the plaintiff's principal claim, which is not erroneous.
Therefore, the court below erred by misapprehending the facts against the rules of evidence and by misapprehending the legal principles on the transfer for security, thereby adversely affecting the conclusion of the judgment. Therefore, the judgment on the grounds for the argument and on the other points of issue is omitted. Accordingly, the judgment is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent
Justices Kim Young-ju (Presiding Justice)