[1] The probative value of a disposal document without a signature and seal affixed to the writing titleholder

[2] Where no principal lawsuit has been instituted for ten years after the execution of the preservative measure, whether the effect of the preservative measure is naturally extinguished without the judgment revoking the preservative measure, or whether the effect of the preservative measure is terminated retroactively at the point of ten years after the execution of the preservative measure becomes final and conclusive (negative)

[1] Article 358 of the Civil Procedure Act / [2] Articles 706(2) (see current Article 288(4)) and 715 (see current Article 301 of the Civil Execution Act) of the former Civil Procedure Act (wholly amended by Act No. 6626, Jan. 26, 2002)

[1] Supreme Court Decision 89Meu16383 delivered on February 13, 1990 (Gong1990, 637) Supreme Court Decision 94Da11590 delivered on October 14, 1994 (Gong1994Ha, 2974) / [2] Supreme Court Decision 2002Da58389 delivered on April 9, 2004 (Gong2004Sang, 786)

Plaintiff

Defendant

Suwon District Court Decision 2006Na6413 Decided January 26, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where the signature of the party, who is the title holder recorded in the disposal document, does not dispute the party itself, even if the signature or seal is not affixed to the document, the authenticity of the document is presumed to have been formed, and thus, its probative value cannot be denied without any explanation acceptable (see, e.g., Supreme Court Decisions 89Meu16383, Feb. 13, 1990; 94Da11590, Oct. 14, 1994).

The court below held that the defendant's address and name stated in Gap evidence No. 1 (a sales contract) are the defendant's own pen, and therefore, the authenticity of the above sales contract is established, and further, considering the above sales contract and the admitted evidence, the plaintiff and the defendant concluded a sales contract setting the sales amount of KRW 60 million with respect to the real estate of this case as KRW 60,000,000 in lieu of the payment of the sales price and the plaintiff did not separately pay the purchase price to the defendant. In light of the above legal principles and records, the above fact-finding and the judgment of the court below are justified.

The court below did not err in the misapprehension of legal principles as to the authenticity and probative value of a disposal document, or in the misapprehension of facts due to violation of the rules of evidence and experience, incomplete hearing, and lack of reasons

2. Article 706 (2) of the former Civil Procedure Act (wholly amended by Act No. 6626 of Jan. 26, 2002) which applies mutatis mutandis to a provisional disposition under Article 715 of the same Act is merely the fact that where a creditor fails to file a lawsuit on the merits by the time ten years have passed since the execution of the preservative measure, the debtor may file a lawsuit on the cancellation of the preservative measure, and it cannot be deemed that the effect of the preservative measure is extinguished naturally even without the judgment on the cancellation of the preservative measure, or that the effect of the preservative measure is extinguished retroactively from the time ten years have passed since the execution of the preservative measure became final and conclusive (see Supreme Court Decision 2002Da58389, Apr. 9, 2004).

Upon examining the records in light of the above legal principles, the court below rejected the defendant's assertion that the plaintiff's right to claim the transfer of ownership expired retroactively due to the expiration of the extinctive prescription under Article 175 of the Civil Act on the ground that the contract for the sale of the real estate of this case was concluded on June 12, 1989, and the plaintiff's lawsuit of this case was filed on November 4, 2005, which was ten years after the expiration of the ten-year period thereafter, and the plaintiff's claim for the transfer of ownership was not filed on March 11, 1993 on the real estate of this case by the plaintiff's application, even if the provisional disposition was revoked on December 21, 2005, on the ground that the provisional disposition of this case does not fall under "when the provisional disposition is revoked upon the request of the right holder or because it does not comply with the provisions of the law."

The court below did not err in the misapprehension of legal principles as to the interruption and invalidation of extinctive prescription due to a provisional disposition as alleged in the grounds of appeal.

3. The right to make a promise for payment in kind is a sort of right to form a contract between the parties, if there is an agreement between the parties to exercise the right within that period, within 10 years from the time when the right occurs, and if the period has expired, the right to make a promise is extinguished upon the lapse of the exclusion period (see Supreme Court Decision 97Da12488, Jun. 27, 1997, etc.). However, as in the instant case, if the property right is completely transferred to the other party in lieu of the obligation after the expiration of the said period, there is no problem of right to complete a promise for payment in kind.

The judgment of the court below to the same purport is justifiable. The court below did not err by misapprehending the legal principles as to the right to make a promise for payment in substitution.

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

Justices Shin Hyun-chul (Presiding Justice)