The case recognizing the establishment of a tort in the event that a sale security holder in a weak sense of law disposes of the secured real estate;

Although a secured party has the right to dispose of secured real estate, in relation to the debtor, he/she must dispose of secured real estate at an appropriate price at the market price. Therefore, if he/she disposed of secured real estate at a price with a significant difference in the market price, such act barring special circumstances to the contrary, barring any reasonable price, constitutes a tort.

Article 750 of the Civil Act

Plaintiff (Attorney Lee Jae-sub et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Lee Young-young, Counsel for the defendant-appellant)

October 14, 1970

Seoul Civil District Court Decision 66Da12504 delivered on August 5, 1967 and Supreme Court Decision 69Da112 delivered on March 25, 1969

The appeal is dismissed.

With respect to the plaintiff's conjunctive claim at the trial, the defendant 1 shall pay to the plaintiff the amount of 486,118 won and the amount calculated by the rate of 5% per annum from September 27, 1966 to the full payment day.

The plaintiff's remaining claims are dismissed.

Of the litigation costs, the costs of appeal against the defendant 2 shall be borne by the plaintiff, and the costs of appeal between the plaintiff and the defendant 1 shall be borne by the plaintiff, while the costs of appeal against the defendant 1 shall be borne by the above defendant, and the remainder shall be borne by the plaintiff.

This judgment may be provisionally executed only with respect to the payment of the amount under the above two paragraphs.

(This paper) On September 21, 1966, Defendant 1 completed the procedure for cancellation registration of ownership transfer registration due to sale on September 20, 1966, receipt by the Seoul Civil District Court Dongdaemun-gu Office of Registry of Seoul, Seoul District Court No. 23300, Sep. 20, 196; Defendant 2 performed the procedure for cancellation registration of ownership transfer registration due to sale on September 27, 1966, No. 23906 of receipt by the same registry office on September 26, 196, respectively. The litigation cost shall be borne by the Defendants.

(Preliminary) Defendant 1 shall pay to the Plaintiff the amount of KRW 1,720,00 and the amount calculated by the annual rate of KRW 5 percent from September 27, 1966 to the full payment day. The costs of lawsuit shall be borne by the Defendants, and a provisional execution shall be sentenced.

Judgment of cancellation of the original judgment and of the purport of the claim shall be rendered.

There is no dispute between the parties as to the fact that the real estate in the attached list was originally owned by the plaintiff and the fact that the registration of transfer of ownership was made on September 21, 1966 under the name of defendant 1 and September 27 of the same year on September 27 of the same year.

First, I examine the plaintiff's principal claim seeking cancellation of the above registration.

In full view of all the statements in Gap evidence Nos. 1-2 (Certified Copy of Register) and 2-2-1 through 5 (Receipt) of the same evidence Nos. 2-2 (Receipt), and 3-2 of the same evidence Nos. 3 (Examination Record of Witnesses) without dispute over the establishment, the plaintiff borrowed 500,000 won from May 21, 1965 with interest rate of 4% on May 21, 1965 as of October 21, and at the same time set the maximum amount of 550,000 won for the above real estate and issued a certificate of seal impression to the above defendant, and issued the certificate of seal impression to pay the principal to the above defendant within the scope of interest paid. However, if the plaintiff fails to perform this, the above defendant arbitrarily obtained ownership transfer registration for the above real estate and disposed of it, so if the plaintiff sells the remaining real estate under the above agreement to sell it to the plaintiff, the defendant did not have to sell it again within 60 days after the due date of payment.

Therefore, it cannot be readily concluded that the initial contract for the loan of consumption was changed to a contract which does not have a fixed period of time on several occasions, and the Plaintiff’s assertion to the effect that the Plaintiff’s deposit of the principal and interest of the real estate was made because the Plaintiff’s old-age loan contract was too small compared to the market price due to the difference between the Plaintiff’s old-age loan contract and its collateral contract was a promise for the return of substitute land and that it was remarkably unfair act constitutes abuse of rights, or that it is not in violation of the provisions of Article 607 and Article 608 of the Civil Act, or that it is not effective since the above contract was concluded with a contract with the nature of the sale security in the weak meaning of the contract, it is apparent that the Plaintiff cannot accept the premise as long as it is recognized as a contract with the weak meaning of the sale security, and there is no reason to conclude that the transfer registration of ownership due to the sale between Defendant 1 and Defendant 2 is a false statement on the purport that the Plaintiff’s deposit did not affect the registration of ownership of the principal and interest of the Defendant 2.

Therefore, it is legitimate for Defendant 1 to dispose of secured real estate as well as the transfer registration of ownership to Defendant 2, because the Plaintiff did not repay the principal and interest after the maturity of the contract. Defendant 2 shall acquire ownership of such real estate. Therefore, the Plaintiff’s principal assertion that the registration of the Defendants is null and void cannot be accepted without merit.

Next, we examine the plaintiff's conjunctive claim.

As seen above, Defendant 1, who is a secured party, has the authority to dispose of real estate as seen above, but in relation to the Plaintiff, as the debtor, the above Defendant does not acquire ownership to the real estate of this case and dispose of it as the status of the owner. Thus, even if the motive for prompt collection of claims is to dispose of the real estate of this case, it should be returned to the Plaintiff if there is any balance after deducting the amount of claims and other expenses from the market price for the Plaintiff.

Nevertheless, if the secured real estate was disposed of at a price with a significant difference in the market price, barring special circumstances to the contrary, such an act cannot be deemed to constitute a tort against the debtor due to negligence, unless there is a reasonable price.

In the instant case, the fact that Defendant 1 sold the instant real estate to Defendant 2 for approximately two months after the due date of suspension for the Plaintiff on September 26, 1966 that was about 780,000 won, which was about two months after the due date of suspension for the Plaintiff, is the starting date of the above Defendant. Since the market price of the instant real estate around that time is the starting date, it can be recognized that the pertinent real estate price was equivalent to KRW 1,850,000 by Nonparty 1’s testimony of the lower court. (According to the above testimony, the purport of the above testimony refers to around November 3, 1966, or that there was no difference between the market price on September 26, 196, and the lower court’s appraiser 2’s appraisal result, but this is not accepted, and thus, the disposal price of the instant real estate cannot be subject to the Plaintiff’s subjective compensation for damages caused by the above Defendant 1’s tort due to the same reason as the above.

As to the amount of damages, the amount of damages sustained by the plaintiff 1, who did not dispute the plaintiff shall be the sum of KRW 20,000, KRW 222,000, KRW 24,074, and KRW 517,808 (in accordance with the rate of 20,00 per annum as stipulated in the Interest Limitation Act at the time of the contract, the interest shall be calculated according to the rate of 20,07,00, KRW 582, which is the difference between the market price and disposal price, and KRW 1,07,00, KRW 118, which is the difference between the disposal price and the disposal price.

Therefore, the original judgment rejecting the Plaintiff’s claim is just and reasonable, but Defendant 1 shall pay to the Plaintiff the above amount and the damages for delay at the rate of five percent per annum from September 27, 1966 to the date of full payment. Thus, among the conjunctive claims in the trial, the remainder is reasonable within the scope of the above acceptance, and is not dismissed as there is no reason.

As to the burden of litigation costs, Article 96, 95, 89, and 92 of the Civil Procedure Act are applied to the declaration of provisional execution, and it is so decided as per Disposition by applying Article 199 of the same Act respectively.

[Attachment List omitted]

Judges Cho Young-dong (Presiding Judge) Kim Young-dong