Whether it is useful if there is a third party who has an interest in the registration before the utilization agreement with respect to the utility of the registration of the establishment of the right to collateral security.

The usefulness of the establishment registration of a neighboring mortgage is possible only if there is no third party who has an interest in the registration before the utilization agreement. Therefore, if there is a person having the provisional registration prior to the utilization agreement, the agreement on the diversion of the establishment registration of a neighboring mortgage is not effective in relation to the person having the provisional registration, and such registration is invalid within the scope of the agreement not consistent with the substantive relation.

Articles 357 and 186 of the Civil Act

[Defendant-Appellant] Plaintiff 1

Defendant

Gwangju High Court Decision 73Na369 delivered on February 22, 1974

We reverse the original judgment.

The case is remanded to the Gwangju High Court.

The Plaintiff’s attorney’s ground of appeal is examined.

According to the reasoning of the judgment

Based on its evidence, the court below decided to lend KRW 1,00,000 to Nonparty 1 around January 22, 1972. The defendant obtained all documents necessary for the establishment of a mortgage on the salt farm of this case owned by Nonparty 1 at the time, and completed the establishment of a mortgage on January 22, 1972, including the maximum debt amount of KRW 2,00,000 for the establishment of a mortgage, but the above non-party 1 terminated the above establishment of a mortgage on the ground of the lack of delivery of KRW 1,00,000 for the loan. On the other hand, the defendant was transferred from the non-party 2 on July 6, 1972 to the non-party 1, the court below rejected the registration of establishment of a mortgage on the ground of the non-party 1's initial utilization of the check bond amount of KRW 2,00,071,90 for the purpose of cancelling the registration of establishment of a mortgage on the ground of the plaintiff's new utilization of the mortgage.

However, the usefulness of the registration of the establishment of a right to collateral security can only be said to be possible if there is no third party who has an interest in the registration before the utilization agreement (see Supreme Court Decision 63Da583, Oct. 10, 1963). In light of Gap evidence attached to the record, the plaintiff and the defendant 1 agreed to use the registration of this case before Sep. 5, 1972, which had already been made by the defendant and the above non-party 1 to use the registration, the plaintiff had already made a provisional registration for preserving the right to claim the registration of the establishment of a right to claim a transfer of real estate based on a promise for sale and purchase on Jan. 24, 1972, and accordingly, the provisional registration for preserving the right to claim a transfer of real estate was completed on December 8, 1972. Thus, the agreement between the defendant and the above non-party 1 as to the establishment of a right to collateral security has no effect in relation to the plaintiff. Therefore, the court below did not err in the misapprehension of the legal principles as to deem it invalid.

Therefore, the original judgment shall not be maintained, and it shall be reversed, and the original judgment shall be decided as per Disposition by the assent of all participating judges in order to make the original judgment new trial and judgment.

Justices Lee Young-young (Presiding Justice)