A. In a case where it is found that a claim for cancellation of a provisional registration or a registration of cancellation of ownership transfer based thereon was filed on the ground of the full repayment of the secured debt, whether the above claim can be interpreted as including a claim for future performance to seek cancellation of the above registration after the repayment of the remaining debt (affirmative)

B. Whether a party should make an additional payment or not is a court’s explanation (negative)

A. If, by asserting that the obligor has repaid the entire amount of the secured obligation, the obligor filed a claim for the implementation of the provisional registration or the procedure for the cancellation of the registration of cancellation of ownership transfer based thereon, but the deposit for repayment is found to have any remaining obligation because it does not reach the extinguishment of the entire amount of the obligation, it is reasonable to interpret that the aforementioned claim includes the purport of repaying the finalized obligation and seeking the cancellation of the above registration. This is also the benefit of a claim in advance as

B. In a trial, the court may exercise its right of explanation in order to clarify the allegations of the parties or to facilitate the verification when the allegations of the parties are unclear or insufficient. However, the repayment of the obligation is a matter belonging to the party's intent and it is not a matter of explanation. Thus, the court below did not ask the defendant whether to make additional payment or not, and there is no error of law in the incomplete hearing due to the non-exercise of the right of explanation.

A. Article 229 of the Civil Procedure Act

A. Supreme Court Decision 86Meu2286 Decided May 12, 1987 (Gong1987, 965) (Gong1987, 1700) 85Meu1792 Decided October 13, 1988 (Gong1988, 442) (Gong1987, 646). Supreme Court Decision 86Meu2521 Decided July 7, 1987 (Gong1987, 1303) (Gong190, 19555) Decided April 27, 1990

Appellee Kim-he et al., Counsel for the plaintiff-appellant

Appellant-Appellant No. 540,500

Seoul High Court Decision 89Na42578, 42585 decided January 31, 1990

The case shall be remanded to Seoul High Court by destroying the counterclaim part of the judgment below.

The remaining appeals by the Defendant-Counterclaim Plaintiff are dismissed.

The costs of appeal dismissed shall be assessed against the defendant (Counterclaim plaintiff).

1. We examine the first ground for appeal.

If a debtor claims for the execution of the provisional registration or the procedure for the cancellation registration of ownership transfer based thereon, and it is found that the deposit for repayment does not reach the extinguishment of the full amount of the obligation, it would be reasonable to interpret that the remaining obligation established during the above claim is included in the purport of making the repayment and then seeking cancellation of the above registration (see Supreme Court Decision 86Meu2286, May 12, 1987; Supreme Court Decision 86Meu2275, Oct. 13, 1987; Supreme Court Decision 85Meu1792, Jan. 19, 198).

According to the reasoning of the judgment below, the court below dismissed the claim for counterclaim against the defendant's provisional registration of this case on the ground that the non-party Kim Young-young, an infant of the defendant (Counterclaim Plaintiff, hereinafter the defendant only), paid the secured debt of this case on behalf of the defendant, deposited the secured debt of this case, and the debt of this case was extinguished. The secured debt of this case due to the provisional registration of this case shall be the amount of promissory notes amounting to 7,060,000 per annum. The interest rate for delay shall be 2,50 per annum from October 13, 1983 to 15,00 per annum, and the above amount of 9,384,280 won deposited with the defendant's principal's principal's repayment shall be 7,060,000 won and the amount of 9,384,280 won deposited with the defendant's principal's repayment of this case from October 13, 1983 to May 17, 1989.

However, according to the legal principles and records revealed earlier, if the deposit for repayment of the claimant's counterclaim does not reach the extinguishment of the entire amount of the debt, the remaining debt is repaid and the purport of seeking cancellation of the provisional registration of this case is also included in the claim for counterclaim. Therefore, the court below should have deliberated and decided on the remaining debt, and should have judged on the counterclaim claim in accordance with the above legal principles.

Nevertheless, the lower court’s failure to take such measures has caused a misunderstanding of the Defendant’s counterclaims, and the lower court’s illegality constitutes grounds for reversal under Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

In the end, it is reasonable to point out this issue.

2. We examine the second ground for appeal.

In a trial, the court may exercise its right of explanation in order to clarify the allegations of the parties or to facilitate the verification when the allegations of the parties are unclear or insufficient. However, the repayment of the obligation is not an issue belonging to the parties' intention. Therefore, the court below did not ask the defendant whether to make additional payment or not, and there is no error of law in the incomplete hearing due to the non-exercise of right of explanation. Thus, there is no ground to point out this issue.

3. We examine the third ground for appeal.

According to the plaintiff's grounds of appeal, although the purport of the claim is amended as stated in the plaintiff's statement of grounds of appeal, it is evident that the plaintiff excluded the part of the amendment of the purport of the claim from the date of pleading when the plaintiff states the above grounds of appeal at the date of pleading. Therefore, there is no ground to assert that the court below erred in accepting the plaintiff's claim against the principle of pleading, on the premise that the above ground

4. Therefore, the judgment of the court below regarding the counterclaim shall be reversed, and the case shall be remanded to the court below for a new trial and determination, and the costs of appeal by the defendant as to the remaining parts shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)