1. In case where a creditor has sold the target real estate to a third party for the exercise of a security right, and then has compensated for the damages that were caused by the debtor's performance of obligation to a third party, whether the amount of compensation is included in the secured obligation to be borne by the debtor; and

2. The time limit where the debtor is able to request the cancellation of the transfer registration made for the purpose of security by repaying the secured obligation.

1. Where a debtor pays a double the down payment pursuant to a special agreement because a provisional registration made for the purpose of security and a sale contract for the exercise of security rights against a third party is impossible due to the debtor's repayment of the secured obligation after the due date for payment, the amount of compensation equivalent to the down payment shall be the expenses to be borne by the debtor unless special circumstances exist and shall be included in the scope of the secured obligation.

2. Even if a creditor disposes of the target real estate to a third party for the exercise of a security right and receives the down payment and intermediate payment as the price therefor, it shall not be deemed that the exercise of a security right has been completed, and the debtor may seek a cancellation of the transfer registration completed for the purpose of security until the ownership transfer registration has been completed in the third party.

Article 372 of the Civil Act, Article 229 of the Civil Procedure Act

July 28, 1981, 81Da257 (Gong64, 14208) decided September 22, 1981, 80Da2270 decided September 22, 1981 (No. 293Gong668, 14371)

Plaintiff

Defendant

1. The plaintiff's main claim is dismissed.

2. On the condition that the Defendant would receive gold KRW 7,100,000 from the Plaintiff, on January 20, 1983 with respect to the real estate recorded in the attached list, the Defendant implemented the provisional registration for preserving the right to claim transfer of ownership on January 19, 1983, which was issued by the Gangnam District Court of Seoul, the Gangnam Branch of the Seoul District Court received on January 20, 1983, and the procedure for cancellation of the ownership transfer registration for the reason of sale on November 1, 1983, which was issued with No. 32519, Apr. 3, 1984.

3. The costs of lawsuit shall be borne by the defendant.

(The purport of the claim: The defendant will implement the procedure for cancelling the registration of transfer transfer on November 1, 1983 with respect to the real estate recorded in the attached list by the plaintiff on January 20, 1983, the provisional registration for preserving the right to claim transfer registration based on the purchase and sale reservation as of January 19, 1983, and the procedure for cancelling the registration of transfer transfer on November 1, 1983, issued by the same registry office as No. 32519 on April 3, 1984.

The costs of lawsuit are assessed against the defendant.

(Preliminary Claim: Section 2 and 3 of this Decree.

The above facts are as follows: Gap 2, 3, 6, 7-1, 2-1, 4-2, 3-1, 3-1, 4-2, 3-1, 0-1, 0-1, 0-1, 0-1, 0-1, 0-1, 3-1, 0-1, 0-1, 0-1, 1-2, 0-1, 3-1, 0-1, 4-1, 0-1, 0-1, 3-2, 0-1, 0-1, 0-1, 0-1, 0-1, 3-1, 0-1, 0-1, 0-1, 0-1, 0-1, 0-2, 00, 10-1, 10-1, 10-7, 10-1, 1983, and 3-1,000,00-1,00

Therefore, the plaintiff's principal claim is equivalent to 4,10,00 won of the above remaining debt amount and damages for delay. Since the plaintiff sought cancellation of provisional registration and ownership transfer registration for preserving the above claim for the transfer of ownership completed before the defendant, if there remains any obligation under preliminary claim, it is alleged that the above registration was cancelled on condition of the repayment of such obligation. Thus, the plaintiff's claim for the above 7-2, 9-2, 9-2, and 11-2, 11 of the above document presumed to have been genuine, and the above 9-10-7, 70-7, 70-7, 70-7, 70-7, 70-7, 70-7, 70-7, 70-7, 70-7, 70-7, 19-7, 50-7, 19-7, 50-7, 19-7, 50-7, 19-7, 50-7, 10-7, 7,

In light of the above facts, the plaintiff's debt principal against the defendant and the damages for delay from December 31, 1983 to July 19, 1984, the debt of KRW 4,184,84,846 with the above repayment deposit was extinguished due to the above repayment deposit. However, as the plaintiff repaid the secured debt to the plaintiff, and the defendant made a provisional registration and cancellation of the registration of transfer of ownership for preserving the right to claim the registration of transfer of ownership in the name of the defendant with respect to the real estate in this case, the above sale contract against the non-party 2 caused the non-party 2 to be impossible, so the defendant shall compensate for double the down payment already received in accordance with a special agreement with the above non-party that the above non-party stated above, and the compensation amount equivalent to the above down payment shall be borne by the plaintiff unless there are special circumstances, and eventually, it shall remain as the secured debt guaranteed by the real estate in this case.

On May 7, 1984, the Defendant sold the instant real estate to Nonparty 2 to exercise the security right, and received the down payment and the intermediate payment, thereby exercising the security right. The repayment of the Plaintiff’s secured debt thereafter cannot be effective in relation to the Defendant, and it is not possible to seek cancellation of the provisional registration and the transfer registration for preserving the right to claim the transfer of ownership, which is completed for the purpose of the security. However, although the Defendant asserted that there is only a claim for settlement against the Defendant, even if he disposes of the instant real estate to a third party and received the down payment and the intermediate payment, it cannot be deemed that the execution of the security is completed even if he disposes of the instant real estate to exercise the security right, and the Defendant received the down payment and the intermediate payment from the third party, and thus, the Defendant’s assertion is groundless.

Therefore, under the premise that the Plaintiff’s obligation to avoid the instant real estate was fully extinguished, the Plaintiff’s principal claim for the implementation of the provisional registration and the cancellation registration procedure for ownership transfer registration, which was completed in the future of the Defendant prior to the Defendant as to the instant real estate, shall be dismissed, without merit, on the condition that the Plaintiff is reimbursed KRW 7,100,000 from the Plaintiff, but the Defendant is obligated to implement each procedure for the cancellation registration of the above provisional registration and ownership transfer registration, under the condition that the Plaintiff is reimbursed for the above amount of KRW 7,10,000,000, and thus, the Plaintiff’s conjunctive claim for this claim shall be accepted

Judges Jeong Jong-hee (Presiding Judge)