[1] Whether the Provisional Registration Security Act applies in cases where a loan claim is included in the secured debt after a right to transfer for security of a purchase price claim is established (negative)

[2] The legality of the appellate brief without specific grounds as to the violation of the statutes

[1] The Provisional Registration Security Act applies to a case where a promise is made to transfer other property rights in relation to the return of a borrowed object, so the Act does not apply to the transfer for security made to secure a sales price claim. The secured claim of the transfer for security in this case constitutes a sales price claim, and thus, is not subject to the Provisional Registration Security Act in the execution of the transfer for security in this case. Even if a loan claim is included in the secured claim after a contract for security in transfer with a sales price claim as a secured claim, it does not interfere with the execution of the original security right

[2] The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes. Therefore, if the grounds of final appeal submitted by the appellant does not explain the above specific and explicit reasons, it shall be treated as failing to submit the grounds of final appeal.

[1] Article 1 of the Provisional Registration Security, etc. Act / [2] Articles 393, 397, and 399 of the Civil Procedure Act

[1] 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) / [2] Supreme Court Decision 93Nu594 delivered on September 28, 1993 (Gong193Ha, 2983), Supreme Court Decision 97Nu1235 delivered on December 12, 197 (Gong198Sang, 3222), Supreme Court Decision 97Da3989 delivered on April 39, 199 (Gong97Da97989 delivered on April 199).

Plaintiff (Counterclaim Defendant) 1 and five others (Attorney Lee Young-young, Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff) 1

Defendant 2 and one other (Attorney Park Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na48865, 48872 delivered on May 12, 2000

Each appeal is dismissed. The costs of appeal are assessed against Defendant (Counterclaim Plaintiff), Defendant 1, Defendant 2, and Defendant 3, and the cost of appeal is assessed against Defendant (Counterclaim Plaintiff) 1.

1. As to the main claim

A mortgagee, who has completed a registration of ownership transfer for the purpose of mortgage, may seek delivery of the secured real estate as part of the realization procedure to exercise the right to dispose of the secured real estate acquired through a security contract, i.e., when the debtor has come to a delay in the performance of the secured obligation due to the lapse of the period for payment, and in cases where a third party takes possession of the secured real estate from the debtor, the claim for delivery of the secured real estate may also be made (see Supreme Court Decisions 90Da9780, Oct. 8, 1991; 91Da21770, Nov. 8, 1991).

However, Defendant 1, Defendant 2, and Defendant 3 asserted that the Provisional Registration Security Act (hereinafter referred to as the "Provisional Registration Security Act") shall apply to the execution of the instant security right, and the creditor of security by means of a realization procedure in order to exercise the right to dispose of real estate, and that the creditor of security by means of a transfer cannot seek an evacuation or withdrawal from the debtor or the third party to whom possession was transferred by means of a realization procedure.

However, since the Provisional Registration Security Act applies to a case in which another property right is promised to be transferred with respect to the return of the object borrowed, the Act is not applicable to the transfer for security made to secure the claim for the purchase price (see Supreme Court Decisions 88Meu20392, Jun. 26, 1990; 90Da13765, Sept. 24, 1991). Accordingly, based on the reasoning of the judgment of the court below, the secured claim for the transfer for security in this case can be known that it is a purchase price claim, and therefore, the Provisional Registration Security Act is not applicable to the execution of the transfer for security in this case. Since the secured claim for the transfer was included in the secured claim after the contract for the transfer for security in which the purchase price claim was made as the secured claim, there is no obstacle to the execution of the right for the transfer for the original claim

Therefore, we cannot accept the Defendants’ assertion in the grounds of appeal on the premise that the Provisional Registration Security Act is applied.

In the same purport, the judgment of the court below that Defendant 1 ordered the Plaintiff (Counterclaim Defendant) to order the instant building, and that Defendant 3 and Defendant 2 have the obligation to leave the said building from each possession thereof is just, and there is no error of law by misapprehending the legal principles as to the illegal cause or non-performance of the right to collateral security, or by misapprehending the legal principles as to the exercise of the right to collateral security.

2. As to the counterclaim

The court of final appeal may investigate and determine only within the extent of filing an appeal based on the grounds of final appeal. As such, the grounds of final appeal should specify the grounds of final appeal and explain specific and explicit reasons as to which part of the judgment below is in violation of the statutes. Therefore, the grounds of final appeal should be treated as failing to submit the grounds of final appeal unless the grounds of final appeal submitted by the appellant contain such specific and explicit reasons (see Supreme Court Decision 98Da41377, Apr. 23, 199).

The ground of appeal of this case does not state any part of the judgment below as to the counterclaims, and does not state any matter that may be the grounds of appeal, and therefore, the appellate brief concerning the counterclaims is not submitted. The ground of appeal of this case also does not state any grounds of appeal as to the counterclaims.

3. Conclusion

Therefore, each appeal shall be dismissed, and all costs of appeal shall be borne by the defendants, and the costs of appeal shall be borne by the defendant 1. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)