In case where a provisional registration has been made for the purpose of debt security, but the principal registration has been made on the basis of the provisional registration, on the ground that the obligation has not been repaid, whether such secured real estate is a property transferred for security

If a provisional registration of the right to claim ownership transfer registration of a real estate has been made for the purpose of securing a claim in borrowing money, but the borrower fails to repay the loan money, and thus the principal registration based on the provisional registration has been made, this registration based on the provisional registration is a weak transfer to the extent that the so-called settlement file is planned for the execution of the security right to the claim based on the above provisional registration, barring special circumstances such as the completion of the settlement procedure, and thus, it constitutes a property transferred for security that substantially becomes the object of the security right to the claim under Article 42

Article 372 of the Civil Act, Article 42 of the Framework Act on National Taxes

Supreme Court Decision 83Nu661 Decided December 26, 1984 (electric power resource agreement)

[Judgment of the court below]

The director of the tax office

Seoul High Court Decision 85Gu512 delivered on January 23, 1986

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

We examine the grounds of appeal.

According to the judgment of the court below, the court below held on September 6, 1980 that the plaintiff lent gold 5,600,000 won to the non-party on December 6 of the same year, the due date for payment, and the real estate of this case owned by the non-party on September 19, 199 of the same year, the provisional registration was made for the preservation of the right to request ownership transfer registration, but thereafter, the above real estate was duly confirmed on March 8, 1984 that the principal registration based on the above provisional registration was completed for the above provisional registration, and the real estate of this case was already provided for the purpose of the security at the time of establishment of the above provisional registration, so it cannot be deemed as a security for transfer of ownership, and thereafter the principal registration based on the above provisional registration was completed only at one stage for the execution of the above provisional registration, and it does not constitute an offer of security under Article 42 of the Framework Act on National Taxes. Thus, the plaintiff's physical designation of this case under the premise that it is a mortgagee under Article 41 of the Framework Act, and its disposition of seizure.

However, according to the facts established by the court below, Article 42 (2) of the same Act provides that "the term "property transferred for security" means the property substantially becoming the object of security for an obligation to the transferor when a taxpayer transfers the property through a contract between the parties concerned," and according to the facts established by the court below, the principal registration based on the above provisional registration of the plaintiff in the name of the plaintiff in the real estate of this case is a weak meaning of the procedure for settlement, which is planned as a means to enforce a security right to the above claim based on the above provisional registration, and thus it constitutes a property transferred for security under Article 42 of the same Act, which is substantially an object of security for an obligation to the plaintiff in fact (refer to Supreme Court Decision 83Nu661 delivered on December 26, 1984). However, the court below's decision that the above non-party merely was a one step to satisfy the secured claim by exercising the security right on the ground that the above non-party did not repay the above obligation, and thus cannot be deemed a real estate in this case due to be justified or justified.

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

Justices Choi Jae-ho (Presiding Justice)