[1] The case holding that in a case where a promise for sale of real estate was made with regard to the land omitted for the additional registration procedure because some land was omitted due to mistake in the registration procedure, the party’s intent was to establish a provisional registration for security of real estate omitted as to the claim amount equivalent to a separate purchase price out of the bonds originally intended to establish a provisional registration for security as a whole

[2] In the event a parcel of land for which a provisional registration for security has been completed is delivered and possessed, whether the prescription of the secured claim for the provisional registration for security is suspended (negative), and whether the provisional registration for security and the registration for transfer of ownership should be cancelled regardless of the interruption of the extinctive prescription of the right to claim ownership transfer registration regardless of the interruption of the right to claim ownership transfer registration

[3] The debtor's assertion that the statute of limitations expired is not permitted against the good faith principle

[1] The case holding that in a case where a promise for sale of real estate was made with regard to the land omitted for the additional registration procedure because some land was omitted due to mistake in the registration procedure, the intention of the parties was to establish a provisional registration for security of land omitted separately as to a claim equivalent to the amount of a separate purchase price out of the bonds originally intended to establish a provisional registration for security as a whole

[2] If a parcel of land for which provisional registration for security has been completed is delivered and possessed, the extinctive prescription of the secured claim for provisional registration for security is not suspended. Even if extinctive prescription of the right to claim ownership transfer registration is interrupted due to the possession of the land before the expiration of the extinctive prescription of the right to claim ownership transfer registration based on the provisional registration for security, so long as the secured claim for the above provisional registration for security expires by prescription, the above provisional registration for

[3] The exercise of the obligor’s right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Code. Thus, in special cases where the obligor has made it impossible or considerably difficult for the obligee to exercise the obligee’s right or the interruption of prescription prior to the completion of the statute of limitations, has acted to make such an obligee believe it unnecessary, has objectively obstructed the obligee from exercising its right, or the obligor has shown the same attitude that the obligor would not invoke the statute of limitations after the completion of the statute of limitations, or where there exist special circumstances, such as where the obligor has made the obligee trust, there is a great need to protect the obligee, and where other creditors of the same condition receive the repayment of the obligation, etc., the obligor’s assertion for the completion of the statute

[1] Articles 105, 186, and 372 of the Civil Act / [2] Articles 162(1) and 372 of the Civil Act / [3] Articles 2 and 162(1) of the Civil Act

[3] Supreme Court Decision 98Da42929 delivered on December 7, 1999 (Gong2000Sang, 140) Supreme Court Decision 2002Da32332 delivered on October 25, 2002 (Gong2002Ha, 2849) Supreme Court Decision 2004Da71881 Delivered on May 13, 2005 (Gong2005Sang, 950)

Plaintiff (Law Firm Barun, Attorneys Kim Dong-dong et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Young-soo, Attorneys Kim Jong-type et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2004Na541 delivered on January 24, 2006

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. Judgment on the Plaintiff’s grounds of appeal

A. In light of the records, the judgment of the court below which rejected the plaintiff's assertion that the provisional registration of the right to claim ownership transfer under the defendant's name on each land listed in the attached list of real estate (hereinafter "each land of this case") was based on the title trust agreement between the plaintiff and the defendant is just and there is no error of law such as misconception of facts due

B. According to the records, in order to secure the Defendant’s claim amounting to KRW 20 million against the Plaintiff, the Defendant decided to make a registration of the right to claim ownership transfer under the Defendant’s name on each of the instant land, which was mistakenly omitted from the land listed in the real estate list in attached Table 2 of the lower judgment (hereinafter “instant land”) due to mistake, the purchase price of the instant land shall be KRW 2 million as to the instant land for the additional registration procedure, and the real estate purchase price shall be KRW 2 million as to the instant land for the purpose of the additional registration procedure. Upon the lapse of the period of December 30, 1988, there is no declaration of intention to complete the sale and purchase, and even if there is no declaration of intention to complete the sale and purchase, the Plaintiff’s assertion that the instant land shall be deemed to have been completed as a matter of course, is not sufficient to accept the registration of sale and purchase in the initial registration procedure, and thus, the Plaintiff’s assertion that the registration of sale and purchase of the instant land shall be deemed to have been completed on the date of maturity of the Plaintiff’s claim.

C. Examining the reasoning of the judgment below in light of the records, the registration of the right to claim ownership transfer under the name of the defendant as to the land No. 2 of this case is a provisional registration to secure the defendant's claim against the plaintiff. Since the due date of the secured claim for the above provisional registration is December 30, 1988, and the due date of the secured claim for the above provisional registration was July 25, 1997, which is the time of filing the lawsuit for the implementation of the procedure for ownership transfer registration based on the above provisional registration, there is no error in the misapprehension of legal principles as to the starting point of the statute of limitations as otherwise alleged in the ground of appeal, or in the violation of the rules of evidence. The period of repayment of the secured claim for the land No. 2 of this case shall be deemed as the due date of the secured claim on each land listed in the real estate list of the judgment below (hereinafter "No. 1 land of this case"). The plaintiff's assertion as to the land of this case cannot be accepted as a document prepared for the title sale registration of this case without the additional registration procedure.

2. Judgment on the Defendant’s grounds of appeal

A. Examining the reasoning of the judgment below in light of the records, the part of the fact-finding of the court below that "in the event that the plaintiff and the defendant entered into a pre-sale agreement with the plaintiff on March 27, 1987 with the purchase price of KRW 20 million and the defendant on June 30, 1987, the above pre-sale agreement is concluded on the day following the end of the above period, even if the defendant did not express his/her intention to complete the pre-sale agreement," is nothing more than the fact-finding that the plaintiff and the defendant entered into the pre-sale agreement in form, and it does not constitute a pre-sale agreement, and it does not constitute a pre-sale agreement, and the substance of the pre-sale agreement is not a pre-sale agreement, as the conclusion that the court below entered into the above fact-finding and the conclusion of the court below, the defendant's assertion that there is a inconsistent reasoning between the fact-finding and

B. In light of the records, the court below is just in holding that provisional registration of the defendant's name based on the above purchase and sale reservation was a provisional registration for securing the defendant's monetary claim against the plaintiff (in so doing, the purport of rejecting the defendant's assertion that provisional registration of the defendant's name is a provisional registration for preserving the right to claim ownership transfer based on the actual purchase and sale reservation) and there is no error of law such as misunderstanding of legal principles as to the validity of the disposal document, misunderstanding of facts, incomplete deliberation, and omission of

C. If a parcel of land for which a provisional registration for security has been completed is delivered and possessed, the extinctive prescription of the secured claim for the provisional registration for security cannot be accepted as an independent opinion. Meanwhile, even if extinctive prescription of the right to claim ownership transfer registration is interrupted because the secured claim for the provisional registration for security is extinguished as long as the secured claim for the provisional registration for security is extinguished by the extinctive prescription of the right to claim ownership transfer registration due to the possession of the land before the expiration of the extinctive prescription of the right to claim ownership transfer registration based on the provisional registration for security, the above provisional registration for security and the ownership transfer registration based on the provisional registration for

D. The obligor’s exercise of the right of defense based on the statute of limitations is governed by the principle of good faith and the prohibition of abuse of rights, which are the major principles of our Civil Act. Thus, the obligor’s exercise of the right of defense based on the statute of limitations is subject to the control of the principle of good faith and the prohibition of abuse of rights. Thus, the obligor’s assertion of the statute of limitations cannot be allowed as abuse of rights against the principle of good faith if there are special circumstances, such as where the obligor made it impossible or considerably difficult for the obligee to exercise the right or the interruption of prescription prior to the completion of the statute of limitations, where the obligee acted to believe that such measures are unnecessary, where the obligee objectively obstructed the obligee’s exercise of right, or where the obligor did not use the statute of limitations after the completion of the statute of limitations, or where there are circumstances such as where other creditors of the same condition receive the repayment of the obligation, etc., and where there are considerable need to protect the obligee, it is difficult to accept the Defendant’s assertion that the obligor’s assertion on the completion of the statute of limitations as abuse of rights cannot be accepted.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)