The interest in a lawsuit seeking the cancellation of registration with respect to secured real estate subject to the repayment of any remaining obligation;

If there is a dispute as to the extinction of the secured obligation between the obligee and the obligor, and the full repayment of the secured obligation is not recognized, it is necessary to examine to cancel the security right after determining the remaining amount of the secured obligation and performing it. Thus, the claim for extinction of the security right, which is a lawsuit for performance, is the benefit of lawsuit solely on the fact that there is a dispute over the amount of the secured obligation, and if the circumstance of such dispute appears in the reasons for the

Article 229 of the Civil Procedure Act

Supreme Court Decision 71Da1988 Decided July 25, 1972, 80Da2270 Decided September 22, 1981, and 81Da548 Decided May 10, 1983

Plaintiff 1 et al., Counsel for the plaintiff-appellee

Defendant-Appellant Lee Chang-chul, Counsel for defendant-appellant

Daegu High Court Decision 83Na1528 delivered on March 11, 1986

All appeals are dismissed.

The costs of appeal are assessed against each of the plaintiff and the defendant.

1. We examine the plaintiffs' grounds of appeal that there was an error of omission of judgment among the grounds of appeal by the plaintiffs' attorney.

The theory of lawsuit did not determine the plaintiffs' assertion that the full amount of the construction deposit obligation, which is a collateral obligation, is extinguished when the income from the lease of the store for ten years from the date of construction of the store in 1971 to the date of 1981, was appropriated for the construction deposit, or that the above plaintiffs' assertion is rejected in the judgment of the court below's 5 (A) claim for compensation for damages and the decision of the return claim for unjust enrichment. Therefore, there is no illegality in the misapprehension of the judgment.

2. Of the grounds of appeal by the Defendant’s legal representative, the assertion that there was an error of misunderstanding the legal principles as to the reservation of transfer for security and payment in substitutes, and misunderstanding of facts regarding the allegation that there was an error in the misapprehension of legal principles as to the reservation of transfer for security and payment in substitutes and that there was an error of misunderstanding of facts. In the lawsuit, in light of the fact that the Defendant’s contract was concluded against the Defendant on August 27, 1971 by obtaining a contract from the Plaintiffs and the owners of the instant stores, for securing the right to secure the construction cost, the ownership of the store should be reverted when repayment of construction money and interest in arrears is made within December 31 of the same year, and in view of the fact that if the Plaintiffs fail to pay the construction money by the due date, they would lose the right to acquire, the above contract should be interpreted as a pre-sale for payment in substitutes or conditional payment in substitutes, but the court below's interpretation of the contract should be justified in view of the fact that the contract was asserted by the Defendant on the above contract against the Defendant.

3. Of the grounds of appeal by the Defendant’s attorney, we examine the allegation that there was an error of misapprehending the legal principles regarding the repayment of secured debts and the mutual performance of claims for extinguishment of security rights.

The judgment of the court below in Paragraph (2) of this Article ordered the cancellation of registration of initial ownership, which is a security right, on condition that the defendant shall pay a sum of KRW 29,103,914, which is the balance of secured debt, and the delayed payment thereof, from the plaintiffs. Thus, it is not clear whether the expression of the order, subject to the above payment, is a simultaneous performance condition or the payment obligation of the amount, which is the balance of secured debt, is a prior performance obligation. However, as for the reasoning of the judgment of the court below, it can be deemed that the defendant expressed that the repayment of the balance of secured debt is a prior performance obligation, taking into account the explanation that the plaintiffs, who are the debtor, are liable for the repayment of the remaining secured debt by the plaintiffs, and that the defendant is liable for the prior performance obligation.

In this case, the plaintiffs asserted that there is no reason for the interests of the lawsuit in the expression of the terms and conditions of prior performance. However, in order to secure the construction deposit, the plaintiffs filed a claim for cancellation of the above preservation registration under the name of the defendant for the purpose of securing the construction deposit, and the second claim is filed for cancellation of the above preservation registration on the ground that the secured obligation has been fully extinguished, and if the secured obligation remains, the defendant finally acquired the ownership of the above shop as payment in kind, and there is no dispute between the creditor and the debtor as to the extinction of the secured obligation and the payment of the construction cost of the plaintiffs, it is evident in the judgment of the court below that there is no reason for the decision of the court below as to whether the secured obligation has been extinguished or not. Thus, as long as there is a dispute between the creditor and the debtor as to whether the secured obligation has been extinguished and it is not recognized that the secured obligation has been repaid in full, the claim for extinction of the secured obligation, which is a lawsuit for future performance, is the interest of the lawsuit, and there is no need to determine the interests in the lawsuit.

4. The plaintiffs' attorney and the rest of the defendant's attorney's remaining grounds of appeal shall not be eligible to criticize or hire the facts duly found by the court below.

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

Justices Kim Jong-chul (Presiding Justice)