In a case where a provisional registration or ownership transfer registration has been made for the purpose of securing both a monetary loan for consumption or a quasi-loan for consumption and a debt incurred by any other cause, but only a monetary loan for consumption or quasi-loan for consumption remains, whether the provisional registration security or transfer registration applies to such provisional registration as well as a provisional registration security, etc. (affirmative)

The Provisional Registration Security, etc. Act applies to cases where a promise to transfer other property rights with respect to the return of borrowed goods is made. Thus, the said Act does not apply to provisional registration or transfer made to secure any obligation other than a monetary loan for consumption or a quasi-loan for consumption, but in cases of provisional registration or ownership transfer made for the purpose of securing at the same time any obligation for repayment of borrowed money based on a monetary loan for consumption or quasi-loan for consumption and any obligation arising from any other cause, if the subsequent obligation is extinguished for repayment or any other reason and all or part of the obligation to return borrowed money based on a monetary loan for consumption or quasi-loan for consumption remains, the Provisional Registration Security Act, etc.

Articles 1 and 11 of the Provisional Registration Security, etc. Act

Supreme Court Decision 90Da13765 delivered on September 24, 1991 (Gong1991, 2593) Supreme Court Decision 94Da26080 Delivered on April 21, 1995 (Gong1995Sang, 1932), Supreme Court Decision 2000Da47682 Delivered on January 5, 2001 (Gong2001Sang, 427), Supreme Court Decision 2000Da29356, 29363 Delivered on March 23, 2001 (Gong201Sang, 948)

Plaintiff (Law Firm Han, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo, Counsel for the defendant-appellant)

Seoul District Court Decision 2002Na59572 delivered on May 21, 2003

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. The court below rejected the plaintiff's allegation that the provisional registration made to secure the above obligation against the defendant, and the plaintiff's lawsuit of this case seeking the cancellation of the provisional registration made to secure the above obligation against the defendant, that is, if the above provisional registration and the principal registration were made for the purpose of security as alleged by the plaintiff, pursuant to Article 11 of the Provisional Registration Security Act, the plaintiff, who is the debtor, can pay the principal and interest of the obligation to the creditor only within 10 years from the date of registration and claim cancellation of the registration, and there is no right to claim cancellation after the above period expires. Since the plaintiff filed the lawsuit of this case only after the expiration of 10 years from the date of the provisional registration and the principal registration and the principal registration and the provisional registration, the above provisional registration and the principal registration were made for the purpose of security as alleged by the plaintiff, and as long as there is no evidence that the above provisional registration and the principal registration were made for the purpose of the above provisional registration and the provisional registration were made for the purpose of establishing other property rights in lieu of the borrowed property, the above provision as to the effect of the above provisional loan and its indemnity obligation.

2. However, we cannot accept the above judgment of the court below.

A. Since the Provisional Registration Security Act applies to cases where a promise to transfer other property rights with respect to the return of the borrowed object is made, the said Act does not apply to provisional registration or transfer for security to secure any obligation other than a monetary loan for consumption or a quasi-loan for consumption (see Supreme Court Decision 2000Da29356, 29363, Mar. 23, 2001). However, even if a provisional registration or transfer for ownership is made for the purpose of securing both the obligation to return borrowed money due to a monetary loan for consumption or quasi-loan for consumption and the obligation arising from any other cause and the obligation arising from any other cause, if the latter’s obligation is extinguished due to repayment or other cause and all or part of the obligation to return borrowed money due to a monetary loan for consumption or quasi-loan for consumption remains, it is reasonable to view that the Provisional Registration Security Act applies to such provisional registration or

B. According to the records, the Defendant lent a total of KRW 29.5 million to the Plaintiff on several occasions without fixing interest or time limit for payment. The Defendant repaid a total of KRW 32,249,436 to the Plaintiff’s Mutual Saving and Finance Company, etc. on behalf of the Plaintiff, and the Plaintiff paid a total of KRW 7,536 square meters of forests and fields ( Address 1 omitted), KRW 2,610, and KRW 48,149, and KRW 53,207, and KRW 53,000 ( Address 4 omitted), KRW 2,040,000,000 to the Plaintiff, KRW 30,000,000,000 for KRW 40,000,000 and KRW 50,000,000 for KRW 30,000,000,000 for KRW 40,000,000,000,000.

C. According to the above, at the time of the Defendant’s payment of KRW 93 million to Nonparty 2, the principal of the Defendant’s claim against the Plaintiff is maximum to KRW 95,245,922 (loan KRW 29.5 million + KRW 32,249,436 discharged to Nonparty 1 + the maximum debt amount of the right to collateral security established in the future of Nonparty 3 + KRW 18,496,486 repaid to Nonparty 1 + the maximum debt amount of the right to collateral security established in the future of Nonparty 3). As to the claim for reimbursement due to subrogation, at least a statutory interest calculated at the civil legal rate from the date of exemption to the repayment after the date of discharge. Thus, it is unreasonable to conclude that the secured debt was extinguished by the payment of KRW 93 million solely on the basis of the circumstances cited by the lower court even if the provisional registration of this case and principal registration was made for the purpose of collateral, such as the Plaintiff’s domestic claim.

D. Therefore, barring any special circumstance to deem that there was an agreement or a declaration of intent on appropriation between the Plaintiff and the Defendant at that time, 93 million won paid by the Defendant to Nonparty 2 should be appropriated to the statutory interest on the indemnity amount pursuant to Article 479 of the Civil Act, and the principal should be first appropriated to the indemnity amount with a lot of interest on repayment (the interest and the repayment period shall be more than the interest on the indemnity amount added by the statutory interest from the time of the occurrence of the loan amount with no fixed interest and the repayment period). Therefore, it is clear in calculating that each of the above indemnity amount and the statutory interest have already been extinguished by the repayment of the repayment amount, and the Plaintiff’s repayment of the loan amount has already been extinguished by the Defendant’s actual repayment amount to Nonparty 3. In some remaining parts, the provisional registration of this case and this registration of this case shall continue to exist to secure this, and the proviso of Article 11 of the Provisional Registration Security Act shall not be applied to this case’s provisional registration at the time of the expiration of the payment period (the foregoing period shall be calculated at the lapse of 10 years from the above.

E. Therefore, unless the Defendant did not examine the amount actually repaid to Nonparty 3, it cannot be determined whether the Plaintiff’s provisional registration of this case and the claim for cancellation of the principal registration of this case are subject to the exclusion period under the proviso of Article 11 of the Provisional Registration Security Act. However, the lower court rejected Defendant’s principal safety defense on the ground that the provisional registration of this case and the principal registration of this case are not subject to the Provisional Registration Security Act merely because not only the Plaintiff’s debt owed to the Defendant, which is secured by the principal registration of this case, but also the obligation for indemnity is included. Thus, the lower court erred by misapprehending the rules of evidence and failing to exhaust all deliberations, which affected the conclusion of the judgment. Accordingly, the allegation in the grounds of appeal Nos

3. Therefore, the judgment of the court below is reversed without further proceeding to decide on the argument of the second ground for appeal, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)