209Na 117845 (registration of cancellation of ownership) ownership

209Na117852 (Counterclaims)

○ ○

OO-gu OO-dong ○ ○

Law Firm B&L, Attorneys Kang Jong-ho et al., Counsel for the defendant-appellant

Gangwon ○

OO-gu OO-dong ○ ○

Attorney Lee Il-il, Lee Jong-hoon, and Kim Sung-hoon, Counsel for the defendant-appellant

Busan District Court Decision 2009Gahap3172 (Mainy) decided November 20, 2009;

209Gahap5062 (Counterclaim) Judgment

October 15, 2010

November 12, 2010

1. The plaintiff (Counterclaim defendant)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Counterclaim Defendant).

1. Purport of claim

(a) Main claim;

Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

The procedures for changing the name of the seller for sale of real estate listed in the attached list shall be implemented.

(b) Preliminary counterclaim;

As to the defendant 304, 616, 840 won and its 17,00 won, and 00 won on September 13, 2004

Zter, 4, 876, 170 won from January 23, 2007, 18, 971, and 00 won on March 14, 2007

Zter, 24, 173, and 00 won from June 15, 2007, 37, 000, and 00 won on August 3, 2007

Zter, 12, 086, 000 won from October 5, 2007, 15, 517, and 270 won on February 3, 2008

Zter, 68, 293, 280 won from February 6, 2008, 12, 086, and 00 won on February 21, 2008

Zter, 22, 586, and 00 won shall be from May 27, 2008, 43, 553, and 560 won, from May 27, 2008.

From February 12, 2009, from February 12, 2009, from 12,086, and from 00 won on June 9, 2009.

From September 15, 2009 to 4, 302, 560 won, an application for amendment of the purport of each counterclaim of this case from September 15, 2009.

Until the service date of a duplicate, 5% per annum, and 20% per annum from the next day to the day of complete payment.

Korea shall pay the same amount of money.

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the plaintiff's right to sell real estate listed in the attached list.

D. The defendant's preliminary counterclaim is dismissed.

1. cite the judgment of the first instance;

The reasoning for the court’s explanation on the instant case is as stated in the reasoning of the judgment of the first instance except for the addition of the judgment on the Plaintiff’s assertion as set forth in the following Paragraph 2, and thus, this is cited by the main text of Article 420

2. The Plaintiff asserts to the effect that “The registration of ownership transfer under the name of the Defendant with respect to the instant housing is null and void as it is deemed that ○○, the Defendant’s mother, deceiving the Plaintiff and arbitrarily completed the registration.”

However, in view of the evidence submitted by the plaintiff in the first instance trial and the statement in Gap evidence Nos. 10-1 through 18, and Gap evidence No. 11 submitted in the first instance trial, it is not sufficient to acknowledge the plaintiff's above assertion, and there is no other evidence to acknowledge it.

Rather, if the purport of the entire pleadings is added to the evidence Nos. 2 and 19, the Plaintiff issued a certificate of personal seal impression directly issued by the Plaintiff himself and a certificate of registration certificate concerning the instant housing held by the Plaintiff to the ○○○, the mother of the Defendant around September 13, 2004. The real estate purchaser column of the above certificate of personal seal impression stated the Plaintiff’s name, resident registration number, and address, and the Plaintiff filed the instant lawsuit after the registration of ownership transfer was completed in the name of the Defendant.

8. It is recognized that no particular objection has been raised until September 31, 200, and in light of these circumstances, the Plaintiff is judged to have consented to the completion of the registration of ownership transfer in the name of the Defendant for the purpose of exercising the security right to the instant housing by issuing the registration certificate to the least ○○ on September 13, 2004. Therefore, the Plaintiff’s above assertion is not correct.

(2) The plaintiff asserts to the purport that the registration procedure of ownership transfer is null and void since the defendant agreed with the plaintiff about the liquidation of attribution, or the defendant did not notify the plaintiff of the liquidation of attribution.

However, there is no settlement amount if the assessed value of the mortgaged real estate is less than the secured debt amount in the execution of the security right due to the settlement of attribution. Thus, it is sufficient to give notice to the debtor by oral or written means on the ground of falling short of the appraised value and the amount of the secured real estate to the effect that the secured real estate will be reverted to the creditor in a conclusive manner through the exercise of the security right (see Supreme Court Decision 2000Da15661, Aug. 24, 2001). In full view of the above facts acknowledged as above, the defendant, around September 13, 2004, did not reach the judgment of the plaintiff that the appraised value of the mortgaged real estate at the time of the instant house falls short of the total amount of the secured debt amount, the amount of the leased real estate property and the amount of the borrowed real estate debt in Gangnam-gu Seoul Special Metropolitan City, which was recognized as the prior right to the instant house, and thus, the defendant did not remain to pay the liquidation amount to the plaintiff by considering the ownership repayment obligation and the debt amount of this case.

Therefore, the plaintiff's above assertion is not correct.

(3) The plaintiff asserts to the purport that the method of liquidation as alleged by the defendant is unfair, since the objective appraised value around September 13, 2004 of the instant house was written as KRW 115 million (in case of the briefs submitted by the plaintiff, KRW 150 million is written as KRW 155 million. However, in light of the description of evidence No. 9, the plaintiff seems to have been written as KRW 1150 million.5 million. In light of the description of evidence No. 9, the plaintiff asserted to the purport that the method of liquidation that the defendant asserts is unfair.

However, the statement of No. 9 and the testimony of E. ○○○ by the witness of E.○○ is insufficient to admit the Plaintiff’s above assertion, and there is no other evidence to acknowledge it, and as seen earlier, it is judged that the Plaintiff impliedly consented to the method of liquidation notified by the Defendant at the time.

Therefore, the plaintiff's above assertion is not correct.

3. Conclusion

Therefore, the judgment of the first instance court is just to dismiss the plaintiff's main claim, and it is not judged separately as to the defendant's conjunctive counterclaim. Thus, the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Jo Hee-de

Judges Park Jong-yang

Judges Lee Sung-sung