2012Na8169 Demanding the cancellation and recovery of registration of creation of a right to collateral security.

A

B

Suwon District Court Decision 2012Gahap4449 Decided September 26, 2012

December 17, 2013

January 28, 2014

1. Revocation of a judgment of the first instance;

2. As to each real estate listed in the separate sheet to the Plaintiff, the Defendant will implement the procedure for each recovery registration of each registration of creation of each superficies completed by the receipt of No. 75272 of the same registry office, which was completed on August 17, 201 by the receipt of No. 10548 on November 18, 201, and the registration of cancellation on November 18, 201 by the same registry office, which was completed as No. 105549 on August 17, 201 by the receipt of No. 75269 on August 17, 201.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

A. The plaintiff is the person who operates the bond business, and the defendant is the owner of each real estate listed in the separate sheet (hereinafter referred to as "each real estate of this case").

B. On August 17, 2011, the Defendant sold each of the instant real estate at KRW 1.5 billion to C, but the intermediate payment of KRW 150 million on the date of the contract, and the intermediate payment of KRW 300 million on September 26, 201, and the remainder of KRW 1.05 billion on November 7, 201 (hereinafter “instant contract”). At the time of the conclusion of the instant contract, the Defendant and C set out the following special terms and conditions at the time of the conclusion of the instant contract, and C drafted a letter of confirmation to the Defendant on the same day as follows:

Article 5(1) of the Special Agreement, the defendant, at the same time as the contract, prior to the establishment of the collateral security. Accordingly, C shall be fully responsible for it, and therefore, C shall be immediately liable for payment of the purchase price or cancellation of the collateral security.2. In preparation for the occurrence of the non-performance of the contract of C, C shall submit to the defendant all the documents so that C may terminate the registration of creation (the time the registration of creation is completed).3. When C fails to perform the contract, the defendant may terminate the collateral security establishment at any time, and

2. In the event of failure to comply with the intermediate payment and the balance settlement, the Defendant does not raise a civil or criminal objection even if the contract is immediately terminated with the prepared termination document.3. All termination documents were notified to the Defendant and the observer that C obtained the consent of the obligee.4. The termination document and the power of attorney are prepared and sealed on the contract date, and the registration establishment document shall be accompanied immediately after the issuance thereof.

C. Meanwhile, around August 2011, the Plaintiff lent KRW 500 million to C, but C paid KRW 150 million out of the borrowed money from the Plaintiff as the down payment to the Defendant on August 18, 2011.

D. On August 17, 2011, D, M, and N (hereinafter referred to as “Plaintiff’s agent”) concluded a superficies contract (hereinafter referred to as “instant superficies contract”) between the Defendant and the maximum debt amount of KRW 750 million with respect to each of the instant real estate, which is the debtor C, and the Plaintiff as the mortgagee of the right to collateral security (hereinafter referred to as “mortgage contract”) and the duration of each of the instant real estate from August 17, 2011 to 30 years. The Defendant completed the registration of creation of superficies (hereinafter referred to as “instant superficies”) with respect to each of the instant real estate as the Government Registry of the District Court of the Republic of Korea (hereinafter referred to as the “Government Registry of the District Court”) No. 75269 on August 17, 2011.

E. After that, on November 18, 201, the registration of cancellation of each of the registration of creation of superficies of this case (hereinafter “registration of cancellation of each of the instant case”) was completed as of August 18, 201 by the same registry office No. 10549, which was received on August 18, 2011, and by the same registry office No. 105548, Nov. 18, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 8 (including branch numbers, if any; hereinafter the same shall apply), Eul evidence 1 to 3, the purport of the whole pleadings

2. Determination

A. Summary of the parties' assertion

The court's reasoning for this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is cited by the main text of Article 420 of the Civil Procedure Act.

(b) Fact of recognition;

The following facts may be acknowledged in full view of the following facts: (a) there is no dispute between the parties; (b) evidence of Nos. 9 through 20; (c) evidence of No. 4 through 6; and (d) evidence of No. 8 through 10; and (c) testimony of No. N of the trial witness at the

1) When entering into a sale and purchase contract with a landowner, C,O, and P inserted a special clause that "provides the seller with all documents that can cancel the security right established by the buyer up to the time when the buyer is unable to pay the purchase price." The C,O, and P added a special clause that "if the above contract is terminated, the mortgage shall be automatically null and void" (hereinafter referred to as "the special clause") into the form of the mortgage contract in which the P and P created by the office of the certified judicial scrivener who did not notify the former owner of the above special clause without notifying the former owner of the establishment of the mortgage, and paid the down payment, etc. only to the owner of the land who borrowed a large amount of money from the former owner, and the landowner collected the land from the former owner by taking advantage of the special clause that was void and cancelled by taking advantage of the mortgage on the land in this case.

2) On August 17, 201, C borrowed KRW 500 million from the Plaintiff from the E judicial scrivener office located in Q Q at Yangju, and entered into a contract to set up a mortgage of KRW 750 million in the Plaintiff’s name using a form of a mortgage agreement inserted with a special clause for invalidation of this case, and a superficies agreement containing a provision to the same effect as the special clause for invalidation of this case, which was entered into by P in the presence of the secretary general of the Korean judicial scrivener, with respect to each of the instant real estate held by the Defendant, which was introduced by P and P as a collateral, and R completed the registration of the establishment of the neighboring mortgage and the creation of the superficies of this case at the registry office on the same day.

3) However, the facts revealed that C had no intent or ability to pay money. As such, the instant sales contract, the instant mortgage contract, and the instant superficies contract were inserted in the foregoing null and void agreement, the Defendant, a landowner, was able to terminate the instant mortgage and the instant superficies.

4) C,O, and P had shown the same attitude that they set up and borrow a general right to collateral security and superficies to the Plaintiff with hiding the above situation, and were paid the money as seen earlier by the Plaintiff.

5) On August 17, 201, R was delegated by the Plaintiff’s agent to the effect that the registration of the establishment of the instant neighboring real estate and the registration of the creation of the superficies of this case should be sealed and used in relation to the seals under the Plaintiff’s name. On the same day, R was in charge of the suspension of the Plaintiff’s name with the authority delegated by the Plaintiff’s agent to use them. On the same day, a certified judicial scrivener’s office used this fact, as for the opportunity to affix the said seal to the application form for registration of the establishment of a right to collateral security and the registration of the creation of superficies of this case, P, without the authority to exercise the authority, arbitrarily delegated the Plaintiff’s agent’s right to file the application form for registration of the establishment of a right to collateral security and the registration of the creation of superficies of this case, and R affixed the Plaintiff’s name and address to the “person liable for registration” column, which

6) The Defendant, based on the power of attorney of the Plaintiff, cancelled the registration of the establishment of the instant neighboring land and the registration of the creation of the instant superficies.

C. Determination on the cause of the claim

The facts of recognition and the following circumstances acknowledged by the aforementioned evidence, namely, ① the Plaintiff’s agent notified C of the repayment of KRW 500 million up to October 31, 201 through one of the Plaintiff’s agents around October 26, 201. On November 11, 2011, C sent the Defendant with content-proof mail that C would apply for voluntary auction as to each of the instant real estate if the principal and interest of KRW 500 million are not repaid until November 19, 2011. ② On March 19, 2012, C prepared a statement to the effect that C would pay KRW 30 million by no later than two months interest on the said loan, and ③ the Plaintiff’s voluntary establishment of the instant superficies and the registration of the instant real estate was revoked by taking into account the following circumstances: (a) the Plaintiff’s voluntary establishment of the instant superficies and the registration of the instant real estate, regardless of the Plaintiff’s intention to have been revoked; and (b) the Plaintiff’s voluntary establishment of the instant superficies and the registration of the instant real estate.

Therefore, barring special circumstances, the Defendant is obligated to implement each procedure for recovery registration entered in the text to the Plaintiff.

D. Judgment on the defendant's assertion

The Defendant agreed to invalidate both the instant sales contract and the instant mortgage contract and the instant superficies contract in the event that the instant sales contract was not properly implemented between C, the Plaintiff’s agent, and the Defendant. Since the Defendant cancelled the instant sales contract and cancelled the registration of the creation of the instant superficies by using documents delivered from C on the ground that C did not perform its obligation to pay intermediate payment and the remainder, the Defendant asserted that each of the instant registrations is registration in accordance with the substantive relations.

In light of the above, if the contents written in the disposal document are printed in the same text, it is nothing more than a printed example and it cannot be deemed as the content of the agreement. Thus, it cannot be readily concluded immediately as the content of the agreement by using the disposal document as the content of the agreement of the parties. Considering the parties’ intent in accordance with specific matters, the meaning of the contract and whether it is merely an example should be determined (see, e.g., Supreme Court Decision 97Da36231, Nov. 28, 1997).

In light of the above legal principles, Article 6 of the mortgage contract of this case and Article 6 of the superficies contract of this case prepared between the plaintiff and the defendant as seen earlier are invalid special agreements of this case, which provide that "the mortgage of this case and superficies of this case shall be automatically invalidated in the event that the contract of this case is rescinded." However, the following circumstances revealed by the above facts, i.e., at the time of entering into the mortgage contract of this case and superficies contract of this case, between the plaintiff, the defendant, and C, can only be seen to have agreed on the establishment of superficies and superficies on each of the real estate of this case to lend KRW 50 million to C and secure them. ② At the time of entering into the mortgage contract of this case and superficies contract of this case, the circumstance that the contract of this case was entered into with the defendant and the plaintiff's agent was not explained or known, and the plaintiff cannot be seen to have been aware of or have not been able to have been able to have been able to have any other reasons to be nullified in light of the fact that the contract of this case or superficies of this case were invalid.

3. Conclusion

Therefore, since the defendant is liable to implement each procedure for recovery registration entered in the order to the plaintiff, the plaintiff's claim of this case shall be accepted with merit, and since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the above order shall be ordered against the defendant as above. It

Judges of the presiding judge;

Judges Hong-chan

Judges Odices

A person shall be appointed.