Whether a borrower of a loan for consumption is deemed to be an illegal cause of payment in a case where the borrower of the loan for consumption provides security and borrows money with knowledge of the offense under Articles 607 and 608 of the Civil Act.

Even if the borrower was aware of the violation of the mandatory provisions of Articles 607 and 608 at the time when the borrower entered into a contract to provide security for the borrowed debt, it cannot be viewed as an illegal cause of payment.

Article 746 of the Civil Act

[Plaintiff, Appellant] 4293Public359 decided Dec. 27, 1960 (Civil Code 746(4) 505, 6895)

Plaintiff

Defendant

Seoul High Court Decision 4294Gug88, 623)

The prosecution on the main lawsuit of the Plaintiff (Counterclaim Defendant) and the prosecution on the counterclaim by the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

The part against the plaintiff (Counterclaim defendant) regarding the counterclaim among the original judgment shall be revoked.

The Defendant-Counterclaim Plaintiff’s counterclaim is dismissed.

The litigation costs relating to the principal lawsuit shall be borne by all the first and second instances of the court, and the public prosecution costs relating to the counterclaim shall be borne by the defendant (Counterclaim plaintiff).

The Defendant-Counterclaim Plaintiff’s attorney shall revoke the part against the Defendant-Counterclaim Plaintiff in the original judgment.

The Plaintiff (Counterclaim Defendant) paid to the Defendant (Counterclaim Plaintiff) an amount equivalent to the rate of 840,000 exchange per month from September 29, 1960 to the time when ordering the real estate stated in the list of Attached Nos. 3.

The prosecution of the plaintiff (Counterclaim defendant) is dismissed.

All of the costs of lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the Plaintiff (Counterclaim Defendant)’s attorney is dismissed.

The original judgment shall be revoked.

On May 24, 1960, the Defendant-Counterclaim Plaintiff (Counterclaim Defendant) performed the procedure for the registration of cancellation of ownership transfer as described in No. 17564 of the Seoul District Court’s receipt of No. 17564 on May 24, 1960 and the registration of cancellation of ownership transfer as described in No. 19786 on June 11, 1960.

The Defendant-Counterclaim Plaintiff’s counterclaim is dismissed.

The first and second trials filed a judgment that all the costs of lawsuit should be borne by the Defendant (Counterclaim Plaintiff).

The actual assertion of both parties between the plaintiff (the plaintiff is only a counter-party defendant's representative) shall be due for the financial difficulties of the plaintiff (the plaintiff is a minor of March 1, 1946, and all of the defendant's actions below the above act was done by the non-party 1 on behalf of the plaintiff) from the defendant (the plaintiff is a minor of March 1, 1946). The amount of 6,500,000 dollars (5,000 dollars which is 10,000,000) shall be due for the repayment of interest on November 23 of the same year 23, the 1960% interest rate shall be 23% per month, and if the plaintiff fails to pay the above amount after the due date, the plaintiff shall be 60% per annum 1,500 per annum 60,000,000 won per annum 60,0000,000 won per annum 60,000,000 won per annum 6,0.

Afterwards, the defendant still has a business ethics for the loan of 4,50,000 refund money which the defendant had already been lent to the non-party 2 without any collateral, as collateral for the plaintiff, and if the plaintiff takes over the above claim against the non-party 2 in return for the loan of 4,50,000 refund money equivalent to the defendant's 4,500,000 additional loan money to the plaintiff, and the non-party 2 is able to pay 3,000 loan money separately to the plaintiff, and the non-party 2 is able to pay 60,000 loan money for the above 60,000 loan money for the loan of 10,000 loan money for the above 60,000 loan money for the loan of 10,000 loan money for the above 60,000 loan money for the loan of 30,000,000 loan money for the above 60,000,000 loan money for the above loan of 3.

As such, the Plaintiff acquired the Defendant’s claim 4,50,000 worth owed by Nonparty 2 against the Defendant, while Nonparty 2 acquired the obligation of KRW 4,50,000 owed by Nonparty 2 against the Defendant, which results in the same claim becoming the same debtor against the same claim. As such, the contract for assignment of claims and the contract for debt assumption cannot be deemed null and void, and thus, the contract for debt assumption that the Plaintiff acquired the obligation of Nonparty 2’s claim 4,50,000 worth owed by the Defendant is null and void, and the Plaintiff is not liable to pay the same amount to the Defendant.

However, even if it is not so, the above non-party 2 paid only the interest for one month as a person who has no credit or gender, and paid it to the plaintiff as a security for the debt, and the remaining two of the three-party 2 are false ownership and provisional attachment by other creditors. Since the non-party 2 himself is in flight, the above-party 2's claim against the non-party 2 that the plaintiff acquired from the defendant cannot be recovered. Thus, on September 29, 1960, the plaintiff delivered to the defendant a notarial deed of monetary loan for consumption prepared by the plaintiff between the non-party 2 and the plaintiff on September 29, 1960, and the plaintiff did not pay the debt because the non-party 2 did not pay it in good faith due to the lack of credit or in good faith, it is revoked according to a special agreement with the defendant who signed a quasi-loan loan contract with the acquisition of the claim, and it is substituted for the notification of cancellation.

Therefore, in making a loan for consumption of KRW 9,50,00 to the Defendant, the Plaintiff’s principal and interest from September 30, 1961 to January 23, 1961 plus interest of KRW 565,000 as the principal and interest from September 30 to January 23, 1961 in order to secure it as to the loan for consumption of KRW 13,935,00,00, which are the difference between the Plaintiff and the Defendant’s special agreement for repurchase, and therefore, it is apparent that the above repurchase agreement was disadvantageous to the Plaintiff, and therefore, it would be null and void in violation of Articles 607 and 608 of the Civil Act, which are mandatory provisions for repurchase.

As such, the plaintiff may file a claim for the cancellation registration procedure for the ownership transfer registration based on this, but the defendant stated that it cannot claim for the order or rent of the house, etc., and concluded a repurchase contract for the main real estate among the defendant's arguments that the plaintiff's claim was made. "In order to secure the repayment of the defendant's claim against the plaintiff, this case which already became an ownership transfer registration under the name of the defendant is offered as a security for the plaintiff's claim, as well as the security of the plaintiff's claim against the plaintiff as well as the security of the plaintiff's claim against the original and the defendant by the date of cancellation of the contract," respectively, and the defendant's claim that "the defendant does not claim the compensation for the rent-backed party's claim as a counter-claim," and the defendant's claim that "the defendant agrees that the contract between the plaintiff and the defendant is a sale security, but the sale security is null and void by Articles 607 and 608 of the Civil Code, and that if the defendant's claim against the non-party's claim against the defendant's claim against the non-party.

In Defendant’s attorney’s answer to the principal lawsuit and counterclaim, the Plaintiff’s lease of real estate in the name of the Defendant at the same time with the fees and deadline for the Plaintiff’s assertion to the Plaintiff. The Defendant’s lease of 6,500,000 and 3,000,000 to the Plaintiff on the date of the Plaintiff’s assertion to the effect that the Plaintiff assumed the obligation of 4,50,000 to the Defendant of Nonparty 2, but all other facts are denied. In other words, the Defendant lent 6,50,000 to the Plaintiff on May 24, 1960 and lent 8.3,50,000,000 to the Plaintiff again, and thereafter, leased 4,50,000 to the Defendant of Nonparty 2 without the Plaintiff’s declaration of intention to acquire the obligation of 3,161,000,0000 from the Defendant’s Defendant’s 14,000,0000 won.

The plaintiff accepted the obligation of the plaintiff on the condition that the debt acquisition is not a non-credit, non-performing, or insolvent, and that the non-party is an insolvent or non-performing person, and thus the plaintiff cancelled the contract for days. However, as of August 29, 1960, the plaintiff entered into a special agreement with the plaintiff and non-party 2 that the defendant's person with parental authority is not responsible for the debt collection as to the above debt acquisition between the plaintiff and the non-party 1. Thus,

Therefore, on May 24, 1960, the defendant's assertion that the plaintiff's registration of transfer of ownership in the name of the defendant is to secure the defendant's claim based on a loan contract between the plaintiff and the defendant, and that the registration is to be made the object of this claim's security by borrowing 6,500,000 currency from the defendant and adding 7,500,000 currency again on August 29 of the same year to secure the defendant's claim against the plaintiff of 14,000,000 won which was already made in the name of the defendant as security, or that the transfer registration in the name of the defendant of this case is to be made for the purpose of security, as argued by the defendant, with the intention of offering it as security, for the purpose of securing the defendant's claim against the plaintiff of this case, and the intention of the party as to the nature of the security is not only to secure a certain amount only once as alleged by the defendant, but also to offer the money among the plaintiff of this case as security 16060, 500, 6000, as well as the last security obligation of the defendant's.

However, even after August 29, 1960, the Plaintiff loaned money in excess of 14,000,000 won for the real estate offered as security, and the Defendant lent money in several times at the request. Of these, the amount equivalent to 1,726,000 won for the principal of the debt in the attached Form and its interest has not yet been settled. The Plaintiff asserts that the sum of the above five principles of five houses was included in the price for the real estate as of January 24, 1961, the sum of these principles as of January 24, 1961 is equivalent to 1,913,990.

Therefore, as of that day, the sum of the principal and interest of the Plaintiff’s debt owed to the Defendant is 20,113,90 refunds including the principal and interest of 14,00,000,000 and the principal and interest of 18,20,200,000, and the market price of the real estate at that time was 20,000,000, and the Plaintiff’s assertion that it is null and void by Article 607 and Article 608 of the Civil Act is unreasonable.

The defendant's assertion that the ownership transfer of the real estate in this case is actually a sale collateral contract, which does not fall under Articles 607 and 608 of the Civil Code, and even if it falls under the same law, it cannot be asserted that the contract is effective in the present time when the contract becomes final and conclusive as owned by the defendant due to the Do of the repurchase date or the completion of payment in kind, and even if not, the contract is not entirely null and void, and it is not effective only to the extent unfavorable to the borrower, such as interest limitation order, and therefore, it is impossible to claim the return of the real estate in this case until the plaintiff pays the defendant the agreed fees for the use of the building equivalent to the principal and interest to the defendant. Even if it is not so, the plaintiff is aware that it falls under the provisions of Articles 607 and 608 of the Civil Code at the time of this case's contract, and thus, the plaintiff cannot claim the return of the real estate in this case as an illegal cause

Therefore, the plaintiff's claim is unfair. At the same time, the defendant entered into a sales contract with the plaintiff on August 29, 1960, entered into a lease contract with the plaintiff on this case on August 29, 1960, and entered into a lease contract with the plaintiff on August 29, 1960, and the lease period shall be until January 23, 1961, and when the lease period is terminated, the plaintiff agreed to immediately return the real estate to the defendant. The plaintiff did not specify the lease period even after the above lease period has expired. Thus, the plaintiff did not specify it as a counter-claim and the above contract rental fee (the plaintiff paid the interest from September 28, 1960) from September 29, 196 to the above lease period (the plaintiff paid the lease fee to September 28, 1960) and the damages equivalent to the lease fee from September 28, 196 to the subsequent order.

In addition, the defendant asserts as follows. The real estate registration is valid if the current status of changes in rights is not expressed actually, and the amount of debts secured by it at the time of the present collateral contract is not finalized due to its nature. As of January 24, 1961, the total amount of debts owed by the plaintiff to the defendant as of August 22, 1961 shall not reach the price of the present real estate, 14,500,000 (the principal shall be 6,50,000, 4,500, 3,000, 3,000, 200, 200, 206, 196, 206, 206, 206, 206, 200, 206, 360, 206, 196, 206, 206, 306, 206, 306, 209, 306, 2006, 106.

In addition, the method of securing the debtor's property in the name of the creditor in order to secure the debtor's claim, i.e., the sale security, which means the security that takes the debtor's property in the name of the creditor, has been treated as null and void at once, but thereafter, it is possible to recognize its validity after considering the importance of its economic and social functions, as well as the interpretation of Articles 607 and 608 of the Civil Act, it is necessary to compare the legislative intent and the sale security with the social function of the law, so the standard for determining whether it is in violation of the Article 6 of the Civil Act cannot be valid under social norms, and even if the market price of the object exceeds a certain amount of the claim, it cannot be deemed to be disadvantageous to the debtor because the price is so far as it is not too unreasonable under social norms, and even if the market price of the object exceeds a certain amount of the claim, and thus, it cannot be deemed null and void this case's contract

If the defendant's assertion is not accepted, the defendant asserts only the collateral above the real estate. In other words, the collateral is extinguished only when the creditor received the full repayment of the claim and the party agreed to cancel the contract after the creditor received the full repayment of the claim. In this case, the plaintiff did not pay the principal amount of 14,00,000 won and interest, the principal amount of 1,726,000 won and interest interest thereof, and there was no agreement between the plaintiff and the defendant on the cancellation of this contract. Thus, the collateral contract in this case remains valid. Accordingly, the plaintiff's main claim is without merit, and the defendant's counter-claim claim seeking compensation for damages from the 14,000,000,000 won and the principal amount of 1,726,0000 won.

As evidence relation, the plaintiff submitted evidence Nos. 1 through 3, 2, 4, and 5-1, 2, and 5-2 of the evidence Nos. 1 and 3-1, and submitted evidence Nos. 4, 5, 6, and the plaintiff's questioning at the court of the trial, and invoked each result of the verification at the court of the trial and the one-time appraisal, and made a statement that each of the evidence Nos. 1 through 8 of the evidence Nos. 1 and 3 is recognized. The defendant submitted evidence Nos. 1 through 8 of the court of the trial, and submitted evidence Nos. 3-1, 2 of the evidence No. 4-1, 4, and 5-1, and 2 of the evidence No. 1-2 of the court of the trial, and invoked each of the evidence No. 3 of the court of the trial as the benefit of the evidence No. 1-3, 2, 5-1, and 2 of the evidence No. 1-2.

On the other hand, when the Plaintiff entered into an agreement with the Defendant on May 24, 1960 1.1.23, the interest rate of 6.5% per month (42,500 exchange per month) with the Defendant on the above 40-mentioned real estate, and again borrowed 3,000 currency on August 29 of the same year under the agreement between the Plaintiff and the Defendant on the 10-year lease contract with the Defendant 140, the Plaintiff’s title transfer agreement between the Defendant 1 and the 10-year lease contract with the Defendant and the 10-year lease contract with the Defendant on the 40-year lease contract, and the Plaintiff’s title transfer agreement between the Plaintiff and the 50-year lease contract with the Defendant on the 10-year lease contract with the non-party 20-year lease contract with the Defendant on the 140-year lease contract with the non-party 40-year lease contract, and the Plaintiff’s assertion that the above agreement is invalid for the Plaintiff’s testimony as the non-party 2.

Then, the plaintiff asserts that even if the contract on 4,500,000 exchange as above is valid, the contract is concluded on condition that the non-party 2 may recover the above 4,50,000 currency with credit, good faith, and sufficient ability to repay, or that the non-party agreed to cancel the contract at the time of the non-party's absence of credit or in good faith, as stated in the factual column, the non-party agreed to cancel the contract at the time of the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's counter-party's non-party's non-party's non-party's non-party's counter-party's counter-party's non-party's counter-party's counter-party's counter-party.

Therefore, as the plaintiff asserts, the contract on the real estate mentioned above is not related to the non-party 2 from 14,000,000 to 14,500,000,000, excluding 4,500,000, but only pure loan between the plaintiff and the defendant. On the other hand, as the defendant asserts, whether or not this real estate is secured by the debt, including the above 14,00,000, and the principal and interest stated in the separate statement of the party related to the borrowing and lending, and the above contract on this real estate is related to 14,00,000,000, and there is no evidence to prove that the above contract on this real estate is included in the above contract relationship with the non-party 2, or that the above contract is effective with the other credit obligations, and even if the above contract is related to the above 140,000,000,000, it is not related to the above other credit obligations.

그러므로 본건 부동산에 관한 위의 계약이 14,000,000환 이외에 원·피고간의 모든 채권을 위한 것임을 전제로 하는 피고의 근담보, 근보증, 근저당 등에 관한 각 주장은 이유없으니 이에 관한 판단은 생략하기로 하고 14,000,000환의 채권에 대한 관계에 있어서만 위에서 인정한 본건 부동산에 관한 계약의 유, 무효여부 그리고 그 효과만을 살펴보기로 한다. 앞에서 인정한 바와 같이 본건 부동산에 관한 원·피고간의 계약은 어디까지나 14,000,000환 채권의 담보를 위한 것인 바, 현행 민법이 시행된 1960.1.1. 이후에 있어서는 차용물의 반환에 있어서 차주가 차용물에 가름하여 다른 재산권을 이전할 것을 예약한 경우에는 그 재산의 예약 당시의 가액이 차용액과 이에 붙인 이자의 합산액을 넘지 못하는 것이고( 민법 제607조 ) 만약에 이에 위반한 당사자의 약정으로서 차주에 불리한 것은 환매 기타 여하한 명목이라도 그 효력이 없는 것( 민법 제608조 )인데 동 법조의 「이자」는 당사자가 약정한 대물반환기 즉 약정변제기까지의 이자제한령 범위내의 이자를 말하는 것이며 「기타 여하한 명목」이라는 것은 대물변제의 예약이나 양도담보 등도 말하는 것이고 「불리」라는 것은 차용물에 가름하는 다른 재산권의 가격이 차용물과 그 이자의 합산액을 넘기 때문에 차용물과 그 이자에 가름하여 다른 재산권으로 반환하는 것이 조리 또는 사회통념상 차주에게 손해라고 인정되는 경우를 의미하는 것이고 다른 사정을 그 개념의 결정표준으로 하지 않음은 동 법조가 법률행위의 일반적 규정인 민법 제104조 에 대한 특별규정이라는 점 위의 제104조 는 궁박, 경솔 또는 무경험이라는 사정을 요건으로 하고 있음에 반하여 민법 제607조 , 제608조 는 이러한 사정을 요건으로 하고 있지 않다는 점, 제607조 에서는 제104조 와 같이 「현저하게 공정을 잃은 」이라는 말을 쓰지 않고 단지「불리」라고만 하고 있는 점 등으로 보아 명백하다 할 것이고, 또한 민법 제104조 에 위배되는 법률행위는 그 전부가 무효로 되는 만큼 소비대차에 있어서 차주를 보호하기 위한 특별규정인 민법 제607조 , 제608조 에 위배되는 약정은 그 전부가 무효라고 해석하여야 할 것인바 본건 부동산에 대한 원·피고간의 위의 계약은 원·피고간에 있어 위의 원금 14,000,000환을 환매대금으로 하고 환매기간을 1961.1.23.로 하는 환매계약에 의한 것임은 위에서 인정한 바와 같고 앞에서 인정한 월 840,000환의 임대료는 사실상 위의 14,000,000환에 대한 월 6부의 이자인 사실은 원심증인 소외 3의 증언에 의하여 인정할 수 있으니 결국 이는 당시 시행된 이자제한령에 정한 이율을 넘는 것이므로 그 제한 범위내에서 그 이율을 연 2할로 내려서 계산하면 원금 6,500,000환에 대한 1960.5.24.(대여일)부터 동년 8.28.(환매계약전일)까지의 이자와 원금 14,000,000환(위의 6,500,000환을 포함한 것)에 대한 동년 8.29.(환매계약한 날)부터 1961.1.24.(환매기한)까지의 이자는 1,500,000환도 되지 않으니 환매예약 당시의 환매기한까지의 원리금은 15,500,000환도 되지 않는바 그 당시 본건 부동산의 가액이 시가 20,000,000환 정도이었음은 피고도 인정(기록 23정)하고 있으므로 결국 원고의 차용액과 이에 붙인 이자의 합산액보다 본건 부동산의 가액이 4,500,000환 이상이나 넘는다 할 것이니 위의 부동산에 관한 위의 계약은 환매이거나 매도담보이거나 그 명목여하를 가리지 않고 원고에 불리한 것으로서 무효라고 아니할 수 없다.(1960.8.29.자의 계약전에 당초 원고가 차용한 6,500,000환에 대하여서도 1960.9.23.자로 위와 같은 성질의 계약을 체결한 사실은 갑 제2호증의 1과 당사자 변론의 전취지로서 인정할 수 있으나 이에 관하여서도 위에서 인정한 판단이 그대로 적용될 것이다) 물론 피고는, 원고는 위의 계약 당시 그 계약이 민법 제607조 에 위반되는 사실을 알고 있었으니 피고에게 소유권이전등기를 하여 준 것은 불법원인급부이므로 등기의 말소를 청구할 수 없고 또 권리를 포기한 것으로도 된다고 주장하나 설사 원고가 그 계약당시 그 계약이 민법 제607조 , 제608조 의 강행규정에 위반함을 알고 있었다 하더라도 이를 곧 불법원인 급부이거나 또는 권리를 포기하는 행위라고 할 수 없다.

In addition, the defendant asserts that Article 607, Article 608 of the Civil Code does not apply to the expiration of the repurchase period or the completion of the contract as payment in kind. However, as seen above, the real estate in this case can be seen as mentioned above, the monetary loan relationship between the plaintiff and the defendant as the initial payment in kind does not terminate, and the contract cannot be acquired any right under the contract even if the period of the contract for repurchase or the repayment in repayment expires after the original invalidation.

Therefore, all of the above contracts on real estate between the plaintiff and the defendant are effective (a lease agreement) and therefore, the plaintiff has only the right to a loan for consumption of money and did not acquire ownership of the real estate. On the other hand, the plaintiff does not lose ownership of the real estate, order, or obligation to pay rent. On the other hand, if the debtor of a loan for consumption of money has completed the registration of ownership transfer of the real estate owned by the creditor, as in this case, if the debtor of a loan for consumption of money has completed the registration of ownership transfer of the real estate owned by the creditor, the registration shall be deemed to be a title trust for securing the debtor's property at least. Therefore, the registration shall not be deemed to be entirely null and void, and the defendant, who is the registered titleholder, cannot exercise his right beyond the trust scope or dispose of it to another person, and as long as the plaintiff did not repay his obligation to the defendant due to a loan for consumption of money, the plaintiff can not request cancellation of the registration unless the plaintiff paid his ownership of the real estate in this case or the contract on the real estate is valid, and the plaintiff's claim for registration of ownership transfer in the name of the defendant.

Judges Kim Jong-young (Presiding Justice)