[1] Whether the validity of transfer registration for which a provisional registration security holder has made without undergoing the settlement procedure under Article 3 and Article 4 of the Provisional Registration Security, etc. Act (negative) and whether the transfer registration for ownership is effective as a transfer for security within the weak meaning (negative), and whether the transfer registration for ownership becomes effective registration in accordance with the substantive relations (affirmative)

[2] Whether a claim for indemnity, which a provisional registration security creditor has subrogated for a third party of a debtor with priority over provisional registration security obligation in order to preserve his/her right, is also included in the secured claim of provisional registration (affirmative)

[3] The probative value of a final judgment on a civil and criminal case, and whether the specific reasons should be explained in a case where the final judgment is rejected (negative)

[4] The procedure for settling accounts in cases where a subordinate right holder exists under the Provisional Registration Security, etc. Act, and whether it is possible to offset the amount by the provisional registration security holder (affirmative)

[1] In light of the provisions of Articles 3 and 4 of the Provisional Registration Security Act, if the principal registration based on the provisional registration for security was made in violation of the above provisions, the principal registration shall be null and void. Even if the principal registration was made by a special agreement between the person holding the provisional registration and the debtor, if such special agreement is null and void because it is unfavorable to the debtor, the principal registration shall be null and void, and if such special agreement is null and void as it is unfavorable to the debtor, it shall not be deemed void within the purpose of the security. However, if the person holding the provisional registration notifies the debtor of the appraised value of the liquidation money in accordance with the procedure stipulated in Articles 3 and 4 of the Provisional Registration Security Security Act, and if there is no payment or liquidation money to the debtor, the above registration shall be effective registration in accordance with the substantive legal relations after the period of liquidation for two

[2] In a case where a provisional registration security creditor paid a senior provisional registration security obligation to a third party by subrogation to preserve his/her contractual rights prior to the enforcement of a provisional registration security right, barring any special circumstance, barring any special circumstance, the right to indemnity shall also be deemed secured by a provisional registration security contract.

[3] The facts acknowledged in a final judgment on a civil case, such as other civil and criminal cases related thereto, shall constitute a flexible evidence, except in extenuating circumstances. However, in a case where it is acknowledged that it is difficult to adopt a factual judgment in a final judgment on a relevant civil and criminal case in light of the contents of other evidence submitted in the civil and criminal trial, it may be rejected. In such a case, the specific reasons for rejection shall not be explained daily.

[4] Where a person who has a provisional registration security interest notifies a debtor of the exercise of a security right under Article 3 of the Provisional Registration Security Act, and where a junior creditor has a junior creditor, the junior creditor notified under Article 6 (1) of the same Act after giving notification under Article 6 (1) of the same Act, did not exercise a right directly to the creditor, and when the period for liquidation expires, the creditor can repay the liquidation amount to the debtor, as well as where the creditor has a separate monetary claim that is not secured by a provisional registration security against the debtor, the creditor may set off the debtor's obligation for liquidation amount by making it an automatic claim.

[1] Articles 3 and 4 of the Provisional Registration Security, etc. Act / [2] Article 360 of the Civil Act, Articles 3 and 4 of the Provisional Registration Security, etc. Act / [3] Article 187 of the Civil Procedure Act / [4] Articles 3, 4, 5, and 6 (1) of the Provisional Registration Security, etc. Act

[1] Supreme Court Decision 92Da20132 decided Jan. 25, 1994 (Gong1994Sang, 790), Supreme Court Decision 2002Da9127 decided Apr. 23, 2002 / [2] Supreme Court Decision 76Da2169 decided Oct. 26, 197 (Gong1976, 9393) / [3] Supreme Court Decision 92Da51372 decided Mar. 12, 1993 (Gong193Sang, 1171), Supreme Court Decision 95Da49370 decided Mar. 14, 197 (Gong197Sang, 107; 9Da547979 decided Feb. 25, 200 (Gong1997, 107)

Plaintiff

Defendant 1

Defendant (Appointed Party) 2

Gwangju High Court Decision 97Na4172 delivered on May 28, 1999

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Article 3 of the Provisional Registration Security Act (hereinafter referred to as the "Provisional Registration Security Act") provides that, in order for a creditor to acquire ownership of secured real estate by exercising a security right under a security contract, the liquidation amount as provided for in Article 4 of the same Act shall be notified to the debtor, etc. after the time limit for payment of such claim expires. This notification shall specify the appraised amount of secured real estate as at the time of notification and the amount of claim as provided for in Article 360 of the Civil Act, and two months shall expire from the date of receipt of notification. In Article 4 (1) through (3) of the Provisional Registration Security Act, the creditor shall pay the liquidation amount after deducting the value of secured real estate from the value of secured real estate as at the time of notification. If the ownership transfer registration has been already made with respect to secured real estate, ownership of secured real estate is acquired after the expiration of the period for liquidation, and if such provisional registration is made after the expiration of twenty-month period, it is still invalid for the so-called provisional registration to be made within the expiration of two-month period, and it is still invalid for the so-called provisional registration.

According to the reasoning of the judgment below, the court below decided that if the plaintiff and the defendant 1 agreed that the above 40,00,000 won were to be borrowed from the above defendant on December 21, 198 and the above 22,60,000 won were to be used for the construction subcontract of the above defendant and the above 100 won were to be registered for the purpose of securing obligations from the plaintiff, the provisional registration of the above 42,60,000 won was to be made under the name of the above defendant 1 and the above 60,60,000 won was to be 40,000 won for each of the above obligations + 22,60,000 won for the above 40,000 won were to be used for the above 10,000 won for the settlement of the principal and interest on the above 30,000 won for the above 40,000 won interest on the above 30,000 won for the above real estate.

However, in light of the above legal principles, the court below erred in holding that if a provisional registration security holder has completed a principal registration without going through a liquidation procedure, the principal registration shall be "a weak meaning of transfer for security". However, the conclusion that the plaintiff cannot acquire ownership of the apartment house of this case unless the plaintiff completes a liquidation procedure based on the provisional registration for security is justifiable. Therefore, the above error of the court below is not affected by the conclusion of the judgment.

Supreme Court Decision 93Da7334 delivered on June 22, 1993, and Supreme Court Decision 95Da11900 delivered on July 30, 1996, cited by the court below, are related to a provisional registration security right established prior to the enforcement of the Provisional Registration Security Act, and it is not appropriate to apply to this case.

On the other hand, the court below's finding that the provisional registration for the instant row was established on December 21, 1984 between the plaintiff and defendant 1 is proper, and there is no violation of law by misunderstanding the facts against the rules of evidence or by misunderstanding the legal principles on res judicata of a final and conclusive judgment. The allegation in the grounds of appeal on this part is not acceptable.

2. Regarding ground of appeal No. 2

In the event that the market price at the time of the promise to sell and purchase real estate held by provisional registration falls short of the secured debt amount, the plaintiff cannot be notified of the appraised value of the liquidation amount as stipulated in Article 3 of the Provisional Registration Security Act. However, despite the market price at the time of the promise to sell and purchase the apartment house of this case falls short of the secured debt amount, the court below erred in the misapprehension of legal principles as to the provisional registration of the real estate of this case without examining the market price at the time of the promise to sell and purchase the apartment house of this case. However, the plaintiff alleged that the court below erred in the misapprehension of legal principles as to the provisional registration of the real estate of this case without examining the market price at the time of the promise to sell

3. As to the grounds of appeal Nos. 3 through 6

A. In a case where a provisional registration security creditor paid a senior provisional registration security obligation to a third party by subrogation of a debtor in a provisional registration security obligation to preserve his/her contractual right before the provisional registration security right is exercised, barring any special circumstance, it is reasonable to view that the right to indemnity also is secured by a provisional registration security contract (see Supreme Court Decision 76Da2169, Oct. 26, 1976).

According to the records, it can be known that the plaintiff subrogated to the non-party 2 and the non-party 3, who is the senior provisional registration security interest in the apartment house of this case, for the provisional registration security obligation of the defendant 1 and cancelled the senior provisional registration on April 21, 198. Thus, the above claim for indemnity is included in the secured debt of the provisional registration of this case.

Nevertheless, the court below did not examine the existence and scope of the above claim for indemnity and determined that the above claim for indemnity cannot be included in the claim secured by the provisional registration of this case without examining the existence and scope of the above claim for indemnity was erroneous by misapprehending the facts against the rules of evidence or by misapprehending the legal principles as to the scope of the claim secured by the provisional registration of security. The ground of appeal pointing this out has merit.

B. In a civil trial, the facts acknowledged in the final judgment of other civil and criminal cases, etc. related thereto, unless there are special circumstances, may be the eficial evidence. However, in the case where it is deemed difficult to adopt a factual judgment in the final judgment of the relevant civil and criminal cases in light of the contents of other evidence submitted in the civil trial, it may be rejected, and in this case, it shall not be necessary to provide a daily explanation of the specific reasons for the rejection (see Supreme Court Decision 9Da5472 delivered on February 25, 2000).

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the apartment house of this case was paid in kind in lieu of the plaintiff, recognizing that the provisional registration for the apartment house of this case was completed for the purpose of security as the provisional registration for the apartment house of this case was the provisional registration for the purpose of security, but on the premise that the plaintiff was the one who was registered for transfer of 202 out of the apartment house of this case as the payment in lieu of the loan principal of 40,000,000 won against the defendant 1 in the lawsuit for the claim for this loan of this case filed against the defendant 1, the court below judged that the loan of this case was extinguished as the loan of this case was extinguished as the loan of this case since November 9, 1983 to June 3, 195 (Case No. 1 omitted) (No. 41, Record No. 1426, July 13, 1989).

In this case, the plaintiff continued to claim that the apartment house in this case was owned by the plaintiff through payment in kind in this case and related litigation, and the above Gwangju District Court 89 Gahap (Case No. 1 omitted) case also held that the above apartment house 202 was transferred to payment in kind in this case. Thus, in light of other evidences submitted in this case, it can be easily known that the plaintiff's self-employed person can easily understand the objective truth in light of other evidences (the above Gwangju District Court 89 Gahap (Case No. 1 omitted) case, even if the plaintiff was the above fact of payment in kind in this case, the effect of the person's person is limited to the above litigation procedure). While the court below judged that the provisional registration of the apartment house in this case was not a payment in kind to the plaintiff as a provisional registration for security, the court below held that the above apartment house in this case was extinguished by the plaintiff's claim against the defendant 1 in this case. The ground for appeal pointing this out has merit.

C. The provisional registration security right holder shall notify the obligor of the execution of the security right as stipulated in Article 3 of the Provisional Registration Security Act, and in the case of subordinate right holder, the junior right holder notified under Article 6 (1) of the same Act after giving the notification under Article 6 (1) of the same Act does not directly exercise the right to the obligee, and when the period of liquidation expires, the obligee can repay the liquidation amount to the obligor, and in the case where the obligee has a separate monetary claim which is not secured by the provisional registration security against the obligor, the obligee can offset the obligor's liquidation amount by making the automatic claim (see Supreme Court Decision 96Da1776 delivered on July 12, 196).

According to the records, on June 20, 1994, the plaintiff notified Defendant 1 of the appraised value of liquidation (No. 6, No. 267 of the record) on June 20, 1994, and notified Defendant 1 of the decision of the court below that there was no liquidation amount that the plaintiff should pay to the above defendant because the plaintiff remains a debt of KRW 150,316,415 if the appraised value of the apartment house of this case is deducted from each claim of this case from each claim of this case. Further, the plaintiff asserted to the purport that the plaintiff is entitled to pay the above money, since the plaintiff has a debt of KRW 150,316,415, and the complaint of this case and the written application for change of claim and cause of the claim of this case on October 11, 1996, the written application for change of claim of this case on June 9, 1998, since the plaintiff deducteds the appraised value of the apartment house of this case from the secured claim of this case and the claim against the above defendant.

In the same way, the plaintiff asserts that he/she has claims such as loans, subrogated payments, and indemnity payments against the above defendant, and that he/she completed liquidation procedures by offsetting the amount equal to the appraised value of the apartment house in this case with such claims, and on the other hand, he/she can be deemed to have claimed the above defendant for the payment of the remaining amount after offsetting as above. Thus, the court below should have determined whether there was any agreement on principal and interest at the time of the provisional registration security contract for the apartment house in this case, whether the plaintiff was aware of the circumstances leading up to the registration of transfer of shares from the non-party 1 and the fact that the plaintiff was the largest claim for the above non-party 1, and whether there was liquidation money to be paid to the above defendant by examining the existence and scope of claims for reimbursement, and the appraisal value of the apartment house in this case.

Nevertheless, the court below held that ① only part of the claims are the secured debt for the provisional registration of this case, and the remaining claims of the plaintiff's assertion are paid at will for the plaintiff's own security right, and there is no ground to assert against the defendant 1, and further, there is no evidence to acknowledge the circumstance that the parties at the time of the above provisional registration agree to include the obligations arising after the above provisional registration in the scope of secured debt of the above provisional registration, the above claims cannot be deemed to be included in the secured debt secured by the apartment house of this case. Thus, the plaintiff's assertion that the ownership of the apartment house of this case was finally and conclusively transferred to the plaintiff by the liquidation procedure around June 20, 1994, which is based on the premise that the ownership of the apartment house of this case was finally and conclusively transferred to the plaintiff by the settlement procedure of this case. Thus, the plaintiff's assertion about the plaintiff's defendants and the designated parties is without merit. It erred in the misapprehension of the plaintiff's purport of the judgment, and it is therefore justified in the grounds of appeal assigning this error.

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 Seo-sung (Presiding Justice)