Whether the obligation for the transfer of ownership of real estate in lieu of the original obligation constitutes a corporate bond (Article 10 of the Emergency Order) where the registration is completed

If only a contract is concluded to transfer reclaimed land in lieu of the repayment of the original monetary claim, and the ownership transfer registration of reclaimed land was not made by the standard date (72.82) set forth in the Emergency Order on Economic Stabilization and Growth (72.82), the monetary claim cannot be deemed to have been extinguished by payment in kind, which is a real contract, and the above claim shall be deemed to be a bond set forth in the Emergency Order.

Articles 10(1) and 10(3) of the Emergency Order on Economic Stabilization and Growth; Article 466 of the Civil Act

Supreme Court Decision 65Da1028,1030 Decided July 20, 1965

Plaintiff

[Defendant-Appellant] Defendant 1 and 3 others

Intervenor joining the Defendant

Seoul High Court Decision 76Na148 delivered on August 30, 1977

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

The defendant's attorney's grounds of appeal are examined.

With respect to No. 1:

The court below acknowledged that the defendant company entered into a contract with the plaintiff on December 30, 1970 that the company acquired from the non-party agricultural promotion corporation to transfer its right to the part of the reclaimed land to the plaintiff as payment for the debt amounting to 30,748,000 won and met the requirements for setting up against the transfer. However, the court below's examination of the evidence at the time of the decision of the court below can accept the above fact-finding, and it cannot be clearly determined that the above facts-finding is unlawful due to the violation of the rules of evidence or the lack of reasons due to the violation of the rules of evidence or the incomplete hearing, etc., and it is obvious that the defendant's argument that denied the above facts-finding was rejected, and there is no illegality in the judgment of the court below, such as the omission of judgment

With respect to the second ground:

The court below held that the transfer contract between the plaintiff and the defendant in this case was a contract with the condition of suspending the authorization of the authority on the original reclaimed land's completion, and determined that the contract does not conflict with the Public Waters Reclamation Act or the Enforcement Decree of the same Act. In light of the evidence at the time of the court below's ruling, the court below's decision is just and there is no error of law such as misapprehension of legal principles or lack of reasoning due to incomplete deliberation in the judgment of the court below.

With respect to the third point:

The court below rejected the defendant's defense that the defendant company was liable for 30,748,000 won as a result of the defendant company's monetary transaction with the plaintiff, such as loan for consumption, etc. to the extent that the claim was extinguished and the above transfer contract between the plaintiff and the defendant became null and void since it was an enterprise bond under the emergency order on economic stability and growth. The defendant company was liable for 30,748,000 won for the plaintiff on December 30, 1970 (the right of the defendant company to transfer ownership to the plaintiff as to the above land, i.e., the land of this case, 1,659 square meters from the above Agricultural Promotion Corporation) which the defendant company acquired from the non-party company on December 30, 197 (the right of the defendant company to transfer ownership to the plaintiff as payment for the above debt to the plaintiff after the above emergency order was enforced (the above claim against the defendant company had already become null and void at the time of the above emergency order) and did not exist.

In this case, it is clear that the ownership transfer registration of the reclaimed land in this case was not made in the name of the plaintiff, and in this case, the "bonds" in Article 10 (1) of the above Emergency Order means all the monetary liabilities of the company directly or through a third party on August 2, 1972. Article 10 (3) of the same Act provides that if the company has promised to transfer or transfer other property rights in lieu of money, it shall be deemed to be monetary liabilities of the plaintiff's monetary liabilities if the other payment is established at the time of the realizing other payment in lieu of the original obligation. Thus, if the plaintiff's obligation against the defendant company is recognized by the court below, and it is clear that the transfer registration of the ownership of the reclaimed land in this case was not made in the name of the plaintiff, and it is not made in the name of the defendant company's urgent order to pay the above reclaimed land to the plaintiff by the date of the above emergency order to transfer the property rights to the defendant company (the above obligation shall also be deemed to be the monetary liabilities of the above defendant company.

Therefore, the judgment of the court below on the premise that the above claim against the defendant company was already extinguished due to payment in kind at the time of the enforcement of the above emergency order and was not subject to the above emergency order is erroneous in the misapprehension of the legal principles of the above emergency order. Thus, the judgment of the court below is not to be reversed without the necessity of the judgment on the remaining points. The appeal related thereto is

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Young-hee (Presiding Justice)