2020Na2041 Implementation of the principal registration procedure based on provisional registration

A

B

Attorney Lee Young-gu, Counsel for the plaintiff-appellant

Seoul Eastern District Court Decision 2019Da5285 Decided December 12, 2019

December 4, 2020

January 29, 2021

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The Defendant shall implement the principal registration procedure with respect to the registration of the right to claim ownership transfer, which was completed on August 11, 2016 by the Seoul East Eastern District Court (Seoul East District Court) and completed on August 11, 2016, for the registration of the right to claim ownership transfer, on the ground of the completion of the reservation

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence 1 to 15, and Eul evidence 3.

A. As for the E Association (hereinafter “E”) regarding each of the real estates listed in the separate sheet owned by the Defendant (hereinafter “E”), each of the maximum debt amounts of KRW 266,50,000,000, totaling the maximum debt amounts of KRW 52 million was registered in the D, each of the establishment registration of a neighboring mortgage of KRW 52 million in the aggregate of the maximum debt amounts of KRW 5,000,000, the maximum debt amount of KRW 5,000 in the C

D On November 4, 2008, the Seoul East Eastern District Court F, and E on July 2, 2009, the auction procedure was commenced for the instant real estate upon receipt of the decision to commence the auction procedure on July 2, 2009.

B. On January 6, 2010, between the Plaintiff and the Defendant, a sales contract with the following terms and conditions (hereinafter “instant sales contract”) was concluded between the Plaintiff and the Defendant on the instant real estate, and there are the same details, and there exists a contract with the purchase price of KRW 47.5 million (hereinafter “the first contract”) and a contract with the purchase price of KRW 43.5 million (A evidence 13, hereinafter “the second contract”).

◇ 계약금 4억 5000만 원(제1계약서), 4억 1000만 원(제2계약서)은 계약시에 지불하고 영수함◇ 잔금 2500만 원은 2010. 2. 10. 지불한다.

◇ E에 대한 융자금 2억 원을 승계하기로 한다.

◇ 쌍방 합의에 의하여 계약하고, 증인 L, M 입회 하에 계약체결한다.

◇ 전세보증금 및 융자금은 계약금에 삽입한다.

◇ 설정부분 및 제세공과금은 매도인이 잔금시까지 처리하기로 한다.

◇ 매수인이 잔금 정산하고, 입주시에 임대인은 조건없이 비워주어야 함.

C. According to the instant sales contract, the Plaintiff paid KRW 5.3.8 million to D, KRW 60.7 million to E, and KRW 5 million to C, respectively.

E withdrawn the application for auction on January 8, 2010, and the application for auction filed by D was revoked on January 8, 2010 on the grounds of termination on January 8, 2010, and the application for auction filed by D was revoked on January 8, 2010, and the application for auction filed by C was revoked on February 12, 2010.

D. On February 10, 2010, the Plaintiff paid KRW 50 million to H, which was the lessee of the instant real estate, and paid the remainder KRW 2.5 million to the Defendant’s agent. On April 5, 2010, the Defendant retired from the instant real estate.

E. On February 19, 2010 after the conclusion of the instant sales contract, the Plaintiff: (a) obtained a provisional registration of the right to claim ownership transfer on the instant real estate from the Defendant on the ground of a pre-sale agreement; and (b) cancelled the said provisional registration on July 27, 2016 upon the Defendant’s request to extend the maturity of the obligation owed to E; and (c) on July 29, 2016, the right to claim ownership transfer under the name of J union was established as the basis of the maximum debt amount KRW 219.7 million (the first priority mortgage was cancelled in the name of J union; (d) on August 11, 2016, the Plaintiff completed the provisional registration of the right to claim ownership transfer under the name of the Plaintiff (hereinafter “the instant provisional registration”).

F. On October 21, 2019, the Plaintiff repaid the Defendant’s repayment of the Defendant’s loans to JA, including the instant collateral security obligation, to JA on the part of JA.

2. The assertion and judgment

A. The assertion

1) Plaintiff

The genuine contract of the instant sales contract is KRW 435 million. Accordingly, the Plaintiff completed the obligation under the instant sales contract by fully repaying the secured obligation of each collateral security right established on the instant real estate and returning the leased deposit. As such, the Defendant is liable for the Plaintiff to perform the principal registration procedure based on the provisional registration of the instant case, based on the provisional registration of the instant case.

2) The defendant;

The genuine contract of the instant sales contract is KRW 475 million, and the Plaintiff did not accept the secured obligation of the instant collateral security stipulated in the said contract, and did not pay KRW 32.3 million out of the purchase price.

In the first place, according to Paragraph (2) of the special terms and conditions of the instant sales contract, the obligation of the Plaintiff to assume debt is included in the down payment, and the obligation of the Defendant to perform the procedure for the registration of ownership transfer, and the Plaintiff did not perform it, and the Defendant rescinded the instant sales contract with the preparatory document dated July 24, 2019 on the ground of the Plaintiff’s nonperformance of obligation (the Plaintiff repaid the secured obligation of the instant collateral security on October 21, 2019). Therefore, the instant sales contract was lawfully rescinded, and the Plaintiff is liable to compensate the Defendant for the damages incurred by the delay of the procedure for the registration of ownership transfer.

Preliminaryly, the Plaintiff’s obligation to pay the purchase price and the Defendant’s obligation to transfer ownership are in a concurrent relationship. However, the Defendant kept the documents necessary for the registration of transfer of ownership to the Defendant’s legal representative and offered them for performance, but the Plaintiff continued to pay the purchase price. Thus, the instant sales contract was also rescinded on the ground of

B. Determination

1) The amount of purchase price

(A) Although the Defendant asserts that the two contract form (A evidence No. 13) was forged by the Plaintiff, in full view of the purport of the entire arguments in the testimony of witnesses L and N, I, the Plaintiff and the Defendant’s agent I first prepared the two contract form on January 6, 2010, and additionally prepared the first contract form which raised the purchase price in the middle of January 2010 by requesting the Plaintiff to prepare the so-called business contract form for the purpose of reducing the transfer income tax, the two contracts were prepared by N, and all of the above contracts were prepared by N and L at the time of the preparation of the contract form. Thus, the authenticity of the second contract form is recognized.

(B) The Defendant asserted that, while submitting the first written contract at the first instance court, the Plaintiff asserted that the purchase price was KRW 475 million, and thus, a judicial confession cannot be revoked. However, the confession during a trial constitutes a statement of unfavorable facts to himself/herself, consistent with the allegations by the other party, who made the date for pleading or the date for preparatory pleading. Thus, it is difficult to view that the Plaintiff led to the Plaintiff’s confession on the ground that the Plaintiff asserted the purchase price as KRW 475 million while filing the lawsuit, and that the confession

(C) The sales contract stating the purchase price as KRW 435 million is deemed to be genuine. However, in light of the circumstances leading up to the preparation of each contract and the Plaintiff’s assertion that the Defendant paid KRW 4 million to the Defendant, which is equivalent to the difference between the purchase price as stated in the second contract, at the first instance trial, when submitting the first contract at the court of first instance, it is reasonable to deem that the Defendant determined that the purchase price of the instant sales contract was KRW 43,500,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,0000,000,000,000

2) Determination on the cause of the claim

On the other hand, the plaintiff paid KRW 5.8 million to D for the repayment of the secured debt under the name of D as to the real estate in this case, KRW 5.6 million to C for the repayment of the secured debt under the name of D, and KRW 5 million to C for the repayment of the secured debt under the name of C, and paid KRW 6.7 million to E for the expenses such as withdrawal of an application for voluntary auction and interest on loans, etc. concerning the real estate in this case. The plaintiff paid KRW 5 million to H for the repayment of the deposit for lease as to the real estate in this case. The plaintiff paid KRW 2.5 million to the defendant's agent for the payment of the remainder on February 10, 2010. According to the evidence No. 12-1 and 2, according to each of the above statements, the plaintiff was deemed to have fully repaid the secured debt of the real estate in this case to J Association on October 21, 2019. According to this, the plaintiff was obligated to pay the purchase price in this case to the plaintiff under the provisional registration procedure.

3) Judgment on the defendant's assertion

A) On the premise that the Plaintiff’s obligation to take over the secured obligation of the instant case is a prior performance relationship rather than the Defendant’s obligation to take the procedure for registration of ownership transfer, the Defendant asserts that the instant sales contract was cancelled. Therefore, the Plaintiff’s remaining security deposits and loans, except for the remainder 2.5 million won, are written down payment. At the time of the instant lawsuit and the Defendant’s declaration of intent to cancel the instant sales contract from the preparatory document dated July 24, 2019, the fact that the Plaintiff did not take over the secured obligation of the instant right of collateral security until the time when the Plaintiff expressed his/her intention to cancel the instant sales contract, can be acknowledged by either the parties or the evidence of evidence Nos. 3, 10, and 11, but it is difficult to find that the Plaintiff paid part of the secured obligation of the instant case to the Plaintiff after the conclusion of the sales contract and the entire purport of the pleading evidence No. 1, the Defendant did not have any other evidence to acknowledge that the Plaintiff had paid the secured obligation of the instant case to the Plaintiff.

B) The Defendant asserts that the sales contract of this case is rescinded because the Defendant did not pay the balance of the sales price, so the Defendant’s assertion is premised on the premise that the sales price under the sales contract of this case was KRW 475 million as stated in the contract of this case. However, as seen above, the Defendant was the sales price of KRW 435 million as stated in the contract of this case, which was determined at the time. In light of the fact that the Defendant received the balance on February 10, 2010 and removed the real estate of this case from the real estate of this case, and thereafter, the actual owner of the real estate of this case was the Plaintiff, it is difficult to accept the Defendant’s assertion.

C. Sub-decision

The Defendant is obligated to implement the principal registration procedure for transfer of ownership on October 21, 2019, based on the provisional registration of this case, with respect to the instant real estate (the Plaintiff sought the implementation of the principal registration procedure based on the completion of a pre-sale agreement on the date of delivery of a copy of the complaint of this case, but on October 21, 2019, performed the obligation to pay the purchase price under the instant sales contract by fully repaying the secured obligation of the instant collateral security (the date of the pre-sale agreement is recognized as October 21, 2019).

3. Conclusion

The plaintiff's claim of this case is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

Judge Cho Sung-hee

Judges Lee Il-il

Judges Shin FOBO

1) 32.3 million won - The mortgage debt 37.7 million won that the Plaintiff acquired with respect to the right to collateral security that the Plaintiff acquired - The remainder amounting to KRW 5 million paid to H - The withdrawn cost of KRW 60.7 million paid to E

2) The Plaintiff asserted that the Plaintiff paid 2.5 million won to the remainder, and that the Plaintiff paid 17 million won to the Plaintiff is not consistent, and the Defendant does not dispute the payment of the remainder in full.

A person shall be appointed.