[1] Whether a statement to acknowledge ownership of the other party's assertion constitutes a confession in court (affirmative with qualification)

[2] In a case where the ownership of a multi-household house newly built pursuant to a contract between a landowner and a constructor becomes a problem, the case holding that the confession by the defendant, which recognized the landowner as the owner of the above building, is a statement about the nominal owner on the register of the building, and thus, the court is not bound by the court

[3] Whether a mortgagee can seek delivery on the basis of a direct ownership against a third party who has lawfully acquired possession of the secured real estate from the debtor if the debtor had delayed performance of the secured obligation due to the debtor's default (negative)

[4] In a case where a debtor sells or leases real estate, which is the object of security for transfer, to a third party pursuant to an agreement to appropriate it for satisfaction of a debt, whether the creditor may seek delivery of such real estate to the third party for the exercise of security right (negative)

[1] Article 288 of the Civil Procedure Act / [2] Article 288 of the Civil Procedure Act / [3] Article 372 of the Civil Act / [4] Articles 105 and 372 of the Civil Act

[1] Supreme Court Decision 79Da62 delivered on June 9, 1981 (Gong1981, 12061), Supreme Court Decision 87Da749 delivered on May 9, 1989 (Gong1989, 878) / [3] Supreme Court Decision 91Da21770 delivered on November 8, 1991 (Gong192, 75) / [4] Supreme Court Decision 92Da21395 delivered on December 8, 192 (Gong193, 421)

Plaintiff (Law Firm Sang-chul, Attorneys Yu Sung-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Dakel, Attorneys S Chang-son et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2005Na3761 Decided December 21, 2005

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On a petition against the principle of pleading

In a lawsuit involving prior determination of ownership, the statement that the defendant acknowledged the ownership of the plaintiff's assertion can be deemed as a statement about the fact that constitutes the content of the ownership, which constitutes the subject matter of the lawsuit, so it shall be deemed a confession in court (see, e.g., Supreme Court Decision 87Meu749, May 9, 1989). However, this is limited to the case of confession as to the simple legal concept that has no doubt as to the outcome of legal prosecution as to the fact, and in a case where there is a dispute over the result of the theory of prosecution, the court is bound by the confession of the so-called right (see, e.g., Supreme Court Decision 78Da1992, Jun. 12, 1979).

According to the records, the claim that the building of this case is owned by the plaintiff (designated party) and the designated party (hereinafter "the plaintiff et al.") is owned by the plaintiff et al. is merely owned by the plaintiff et al. under the name of the plaintiff et al. when the ownership preservation of the building of this case was not discussed. Therefore, the fact that the defendants made a confession in the reply is also owned by the plaintiff et al. on the register of the building of this case, and it does not include the confession that the plaintiff et al. is the owner of the building of this case. Thus, even if the registered party is presumed to be the owner of the building of this case, if the original acquisition of the building of this case is a matter of ownership of the building of this case, the above legal principle is not applied as a matter of course, and ultimately, since the defendants asserted that the ownership of the building of this case is owned by the non-party who is the original acquisitor as the constructor, etc., the plaintiff et al. asserted that the ownership of this case is against the plaintiff et al.

The court below's finding facts different from the confessions made by the defendants in the response to the above purport is correct, and there is no violation of the principle of pleading or misapprehension of the legal principles as to the confessions in court.

2. As to the remaining grounds of appeal

A mortgagee who has completed a registration of ownership transfer for the security of a claim 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 by the security contract if the debtor has come to a delay in the performance of the secured obligation due to the lapse of the period for payment. In other words, in the execution of the security right, a third party can also seek delivery of the secured real estate against the debtor, and in the case where the third party has lawfully possessed the secured real estate from the debtor, he may not seek delivery of the secured real estate based on the direct ownership (see Supreme Court Decision 91Da2170 delivered on November 8, 191, etc.).

On the other hand, in the above case, in case where the creditor and the debtor agreed to dispose of the real estate subject to transfer for security by selling it in lots, etc. and the debtor agreed to appropriate the proceeds of sale in lots to repay debts, and pursuant to the agreement, the sale in lots or lease of the real estate for the purpose of sale in lots to a third party is deemed to be in accordance with the creditor's intention. Therefore, the creditor's security right to the real estate subject to transfer is already extinguished by the execution of the security right, or the creditor has waived his claim for the security right to that part, and in this case, the creditor cannot request the third party to deliver the real estate subject to transfer for the purpose of exercising the security right (see Supreme Court

In light of the above legal principles and records, the court below acknowledged the facts as stated in its decision after compiling the adopted evidence, and determined that the non-party's act of registration of preservation of ownership of the multi-household house of this case newly constructed at his own effort and expense is to secure the obligation to pay the land price to the plaintiff et al., and there is a special agreement on the method of exercising the security right that the non-party sells in lots and disposes of the remainder other than the plaintiff et al., and would appropriate the proceeds to pay the land price to the plaintiff et al., so the plaintiff et al. for the payment of the land price to the plaintiff et al., so it is reasonable that the non-party et al. can not request the delivery based on ownership against the defendants who leased and occupied the building of this case which is part of multi-household house of this case from the non-party under such special

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)