[1] Whether a person who provisionally attached a claim due to false conspiracy constitutes "third party" under Article 108 (2) of the Civil Code (affirmative), and whether the above "third party" is a requirement without fault (negative)

[2] Whether the act of making a false establishment registration of a mortgage on a real estate for the purpose of evading compulsory execution constitutes a juristic act contrary to social order under Article 103 of the Civil Act (negative)

[3] Whether a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral security is necessary for the validity of the right to collateral security (affirmative)

[4] In a case where there is no secured claim of the right to collateral security, the validity of the order of provisional seizure (negative) and whether the person holding the right to provisional seizure bears the obligation to express his/her consent to the cancellation of the invalid right to collateral security (affirmative)

[1] In case where a provisional attachment is made against a claim arising from a legal relationship formed in the external form by a false representation in conspiracy, it is reasonable to deem that the provisional attachment obligee is a third party under Article 108(2) of the Civil Code because the provisional attachment obligee has a new legal interest based on the false representation. In addition, the third party under Article 108(2) of the Civil Code is sufficient if the third party is bona fide and is not a requirement for negligence.

[2] The act of making a false registration of establishment of a mortgage on real estate with the intention to escape from compulsory execution shall not be deemed a juristic act with any content contrary to the good customs and other social order under Article 103 of the Civil Act.

[3] The right to collateral security is a mortgage established by setting only the maximum amount of the debt to be secured, and reserving the determination of the debt in the future. Since it is a security established for securing a certain limit from a continuous settlement term in the future, there must be a legal act establishing the right to collateral security separately from the act of establishing the right to collateral security.

[4] Where a claim with a right to collateral security is provisionally seized, the purpose of registering the provisional seizure of the right to collateral security by means of additional registration in the registration of the establishment of the right to collateral security is to publicly announce the provisional seizure of the right to collateral security, which is a subordinate right based on the incidental nature of the right to collateral security, if the right to collateral security is provisionally seized, and thus, if there is no right to collateral security, the provisional seizure order shall be null and void, and if the right to collateral security is cancelled, a third party with a interest in the registration shall express his/her consent to the cancellation of the right to collateral security.

[1] Article 108(2) of the Civil Act, Article 276 of the Civil Execution Act / [2] Article 103 of the Civil Act / [3] Article 357(1) of the Civil Act / [4] Article 276 of the Civil Execution Act, Article 171 of the Registration of Real Estate

[1] Supreme Court Decision 99Da51258 delivered on July 6, 200 (Gong2000Ha, 1861) / [2] Supreme Court Decision 93Da61307 delivered on April 15, 1994 (Gong194Sang, 1444)

Plaintiff

Defendant

Daejeon District Court Decision 2003Na4738 delivered on November 13, 2003

The judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In case where a claim arising from a legal relationship formed by a false representation that has been conspired with another person is provisionally seized, it is reasonable to see that the provisional attachment authority falls under a third person under Article 108 (2) of the Civil Act because it has a new legal interest based on a false representation. In addition, Article 108 (2) of the Civil Act is sufficient if the third person is bona fide, and it is not a requirement for negligence.

Therefore, the court below is just in holding that the Defendant constitutes a bona fide third party under Article 108 (2) of the Civil Act on the premise that the mortgage contract between the Plaintiff and the Nonparty is valid and that the secured debt was provisionally seized, and there is no error of law by misunderstanding the legal principles as to the third party of false conspiracy as alleged in the

2. Regarding ground of appeal No. 2

An act of making a false registration of establishment of a mortgage on a real estate with intent to escape from compulsory execution shall not be deemed a juristic act with any content contrary to good morals and other social order under Article 103 of the Civil Act (see Supreme Court Decision 93Da61307 delivered on April 15, 1994).

Although the reasoning of the judgment below is not appropriate, the conclusion of rejecting the plaintiff's assertion that the act of establishing the right to collateral security in this case constitutes a juristic act against social order and thus null and void is just, and there is no error of law by misapprehending the legal principles as to the juristic act against social order

3. As to the third ground for appeal

Upon citing the judgment of the court of first instance, the court below acknowledged that the plaintiff in collusion with the non-party, concluded a mortgage contract with a false intent to establish a maximum debt amount of KRW 100 million, and requested the non-party to lend money to the non-party while presenting the above mortgage contract, and that the defendant lent 32 million won to the non-party, and that the statement was registered upon receiving a decision on provisional seizure of the claim with respect to the part of KRW 32 million out of the claims secured by the previous mortgage registration, the court below determined that the plaintiff did not have a duty to assert the invalidity of the mortgage contract against the non-party, as long as the non-party constitutes a third party in good faith who was declared as one of the parties to the provisional seizure on the said secured claims, and that the non-party did not have any obligation to consent to the cancellation of the mortgage.

However, it is difficult to accept the above judgment of the court below.

A mortgage is a mortgage created by setting only the maximum amount of the debt to be secured and reserving the determination of the debt in the future (Article 357(1) of the Civil Act), and is established with the aim of securing a certain limit from a continuous settlement period in the future. Thus, a legal act establishing a secured claim of the right to collateral should be done separately from the act of establishing the right to collateral security.

On the other hand, in cases where a claim with a right to collateral security is provisionally seized, the purpose of registering the provisional seizure of the right to collateral security by means of additional registration in the registration of the establishment of the right to collateral security is to publicly announce the provisional seizure of the right to collateral security, which is subordinate to the right based on the incidental nature of the right to collateral security, as the provisional seizure of the right to collateral security would become effective if the right to collateral security is provisionally seized. If the right to collateral security does not exist, the provisional seizure order shall be null and void, and if the right to collateral security is cancelled, a third party with a interest in the registration,

According to the records, the plaintiff and the non-party have only entered into a mortgage contract and there is no evidence to deem that there was an expression of intent to establish a secured claim, so the above secured claim is invalid because there is no secured claim.

Therefore, the court below should have sufficiently examined whether there was a legal act between the plaintiff and the non-party to establish a claim secured by the right to collateral security, but rejected the plaintiff's claim without completely examining it. Thus, the court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on provisional seizure of the claim secured by the right to collateral security. The appeal pointing this out has merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)