Cases holding that even if a contract to establish a mortgage was concluded with the aim of securing the claim at the time of the promise to return a substitute, a contract to transfer a security between the parties shall be deemed to have been concluded together with a weak meaning of a contract to transfer a security.

Even if the reservation to return the substitute is not effective upon the receipt of Article 607 and Article 608 of the Civil Act, it can be seen to the effect that the parties to the promise entered into a so-called "assumed transfer security contract" with the same meaning, unless there are special circumstances.

Article 607 of the Civil Act, Article 608 of the Civil Act

Supreme Court Decision 67Da1596 delivered on October 4, 1967

Plaintiff

Defendant

Seoul High Court Decision 67Na2872 decided July 4, 1968

The judgment below is reversed, and the case is remanded to Seoul High Court.

We examine the Defendant’s grounds of appeal.

The lower court has determined as follows. In other words, it cannot be deemed that there is no other evidence that a contract of collateral security was separately concluded except for the establishment of a contract of collateral security for the purpose of securing the claim at the time of the promise of accord and satisfaction, and there is no intention to conclude the contract of collateral security including the so-called weak meaning of the ownership transfer to the creditor externally in the contents of the promise of accord and satisfaction. However, even if the so-called promise of return of substitute is not effective upon receipt of the application of Articles 607 and 608 of the Civil Act, barring any special circumstance, it is reasonable to view the so-called weak meaning of transfer contract between the parties making the promise as well as the so-called contract of collateral security (see Supreme Court Decision 67Da1596, Oct. 4, 1967). Therefore, the lower court’s decision cannot be seen as having affected the conclusion of the case as seen above, and thus, it is difficult to reverse the judgment of the lower court and thus, it cannot be justified.

This decision is consistent with the opinions of the involved judges.

The judges of the Supreme Court (Presiding Judge)