Plaintiff (Counterclaim Defendant) (Law Firm Barun, Attorneys Park Jae-hwan et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Space, Attorneys Choi Dong-sik et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

April 11, 2014

1. All claims filed by the Plaintiff (Counterclaim Defendant) and the counterclaim claims by the Defendant (Counterclaim Plaintiff) are dismissed.

2. Of the costs of lawsuit, the costs incurred by the principal lawsuit shall be borne by the Plaintiff (Counterclaim Defendant), and the costs incurred by the counterclaim by the Defendant (Counterclaim Plaintiff) respectively.

The principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter only referred to as the Defendant) will implement the registration procedure for ownership transfer based on the provisional registration completed on July 6, 2006 by the Seoul Central District Court No. 32466 on the real estate stated in the separate sheet to the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”).

Counterclaim: The plaintiff shall implement the procedure for the cancellation of the registration of the right to claim transfer of ownership, which was completed on July 6, 2006 by the Seoul Central District Court No. 32466, with respect to the real estate listed in the attached list, to

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. A. Around July 2003, the Defendant, while carrying out construction work on △△△△△△△△△△ (total 11 households; hereinafter the “△△△△△△△”) on the land of the Gwanak-gu, Seoul Special Metropolitan City ( Address 2 omitted), which is owned by it, borrowed and prepared the construction cost from others. On the instant site, on July 22, 2002, there was also a set of a maximum claim amount of KRW 286 million for a contract establishing a mortgage on July 22, 2002, Korea Bank Co., Ltd., Ltd., the debtor’s right to collateral security, the debtor’s right to collateral security, the maximum claim amount of KRW 130 million for a contract establishing a mortgage on July 24, 2003, and the debtor’s right to collateral security.

B. In order to prepare a shortage of construction cost, the Defendant requested Nonparty 5 to pay money, and Nonparty 5 introduced the Plaintiff to the Defendant, and the Plaintiff and the Defendant entered into the following contracts:

(1) On May 30, 2004, the Plaintiff and the Defendant entered into a sales contract with the purchase price of KRW 100 million for the first floor No. 101 of Gwanak-gu in Seoul Special Metropolitan City ( Address 1 omitted) △△△△△△△△△ (hereinafter “△△△△△△”) owned by the Plaintiff, and completed the registration of ownership transfer in the name of the Defendant on June 30, 200

(2) On June 19, 2004, the Plaintiff and the Defendant concluded a prior sales contract with respect to 201, 301, and 302 (302) of △△△△△△△△ (the real estate stated in the separate sheet). The details are as follows.

Article 1. Determination of the sale price and 0 million won

Article 2 The defendant shall immediately notify the plaintiff when the public book is arranged and the plaintiff shall complete the transfer of ownership at the plaintiff's expense within 60 days from the date the application for transfer of ownership is possible

C. The Defendant obtained a loan of KRW 80 million as security from △△△△△△△△, and used it as construction cost, and thereafter sold it at KRW 135 million on August 1, 2006.

D. On January 19, 2006, the Defendant obtained approval of the use of △△△△△△△△△△△△△△△△△△ on January 25, 2006, and completed registration of the preservation of ownership on January 25, 2006 (the Nonparty 3 completed registration of the preservation of ownership on behalf of the Defendant on February 24, 2005 for 301 of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, after completing registration of the transfer of ownership on the ground of transfer by means of the Defendant and the lawsuit, disposed of to Nonparty 6) and registered the indication of the site on the instant site (the entire indication of the site right was cancelled on February 5, 2007, and the re-marked on November 22

E. On July 6, 2006, the Plaintiff completed the provisional registration of the right to claim the transfer of ownership (it refers to the provisional registration stated in the purport of the claim) with the Seoul Central District Court Order No. 32466, Jun. 21, 2006, as to 302 △△△△△△△△△ 302.

F. On October 29, 2009, the Defendant, at the Plaintiff’s initiative, sold Nonparty 1 KRW 163 million of the purchase price to Nonparty 1 around October 29, 2009. Nonparty 1 paid KRW 110 million of the purchase price on November 6, 2009 to the Plaintiff. The remainder of KRW 53 million of the purchase price on November 20, 2009, upon agreement with the Plaintiff, set up a collateral security (right to collateral security) with the maximum debt amount of KRW 53 million and KRW 201 of △△△△△△△△△△△△△△△△△△△, the Plaintiff as the mortgagee.

[Ground of recognition] The evidence Nos. 1 through 6, Eul Nos. 1 through 11, each statement of evidence Nos. 1 to 11, the witness Non-party 5 and Non-party 1's testimony, and the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

On May 30, 2004 and June 19, 2004, the Plaintiff agreed to exchange three households with Defendant and △△△△△△△△△△△△△, and accordingly, concluded a pre-sale agreement and completed the provisional registration stated in the purport of the claim on June 21, 2006. As a duplicate of the complaint of this case, the Defendant is obligated to complete the principal registration procedure based on the provisional registration stated in the purport of the claim, and the Defendant asserts that the provisional registration stated in the purport of the claim is obligated to pay KRW 10 million to the Plaintiff, and that the Defendant is obligated to pay KRW 10,000,000 to pay KRW 10,000,000 to the purchase price of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△, and that the Plaintiff is obligated to cancel the provisional registration as a whole by establishing the grounds for the above provisional registration.

B. Determination

(1) Determination as to whether a provisional registration for security was made

Whether or not the property right is transferred in trust with the continuation of the obligation in a specific case, whether or not the property right is transferred as a true sale and purchase, and whether or not the obligation relationship is not maintained by offsetting the price and the claim, shall not be resolved by the witness's testimony, regardless of the terms used by the party, and shall be determined in consideration of the economic effects and other circumstances that the party

In full view of the following facts: (a) at the time of concluding a prior sale contract for △△△△△△△ Loan, the construction of △△△△△ Loan was not completed; (b) the loan of money to prepare the construction cost was made on the instant site; (c) the Plaintiff and the Defendant exchanged 3 debentures from △△△△△△△△△△△△△△, despite the Plaintiff’s assertion, even though the Plaintiff and the Defendant exchanged 3 debentures from △△△△△△△△△△△△△, the Plaintiff did not file a claim for ownership transfer registration even after January 25, 2006; and (d) Nonparty 3 did not take any specific measures even after the provisional disposition was taken by Nonparty 3, the market price of △△△△△△△△△△△△△△△△△△△△△△ Loan 1 and the market price of 3 debentures △△△△△△△△△△△ Loan 1,000,000 won; and (c) the claim for the provisional registration was completed.

(2) Determination on the main claim

The provisional registration stated in the purport of the claim is a provisional registration to secure the payment of the purchase price, and thus, the plaintiff's claim on the premise that the provisional registration is completed to preserve the priority of the claim for ownership transfer registration based on the trade reservation is without merit.

(3) Determination on the counterclaim claim

According to the above facts, the Plaintiff and the Defendant drafted a pre-sale contract for △△△△△△△ Group three bonds (50 million won per bonds), and the Defendant entered into a pre-sale contract to secure payment by promising to pay the purchase price of KRW 150 million until the registration of ownership transfer is possible pursuant to the Building Act or the Registration of Real Estate Act. The Defendant, which is the payment deadline, entered into on January 25, 2006 when the registration of ownership transfer is completed. Accordingly, the Defendant is obliged to pay the Plaintiff 150 million won and damages for delay by 55% per annum as stipulated in the Civil Act from January 26, 2006. The provisional registration stated in the purport of the claim is to guarantee the above obligation to pay the purchase price.

Meanwhile, the Plaintiff paid KRW 163 million from the Defendant on November 6, 2009, the purchase price of KRW 201,000,000 from △△△△△△△ 201,000 (the Nonparty 1 testified that Nonparty 4, the husband, was creating a collateral security instead of paying the remainder of the unpaid benefits of KRW 55,00,000,000,000,000,000 from the Plaintiff) and as of November 6, 2009, the remaining amount of the Defendant’s obligation to the Plaintiff is as follows.

【Calculation Form】

Amount that the Defendant is liable to pay to the Plaintiff by November 6, 2009: KRW 177,123,287 (turf less than won)

KRW 150 million + KRW 150 million + [3 years + 225 days/365 days (from January 26, 2009 to November 6, 2009] ¡¿ 0.05

Remaining amount: 14,123,287 won

177,123,287 - 163,00,000 won

Therefore, the defendant still bears the obligation to pay to the plaintiff 14,123,287 won and damages for delay calculated at the rate of 5% per annum from November 7, 2009 to the date of full payment. Since the provisional registration stated in the purport of the claim is not fully repaid, the defendant cannot seek cancellation of the provisional registration for security against the plaintiff. Thus, the defendant's counterclaim claim is without merit.

3. Conclusion

If so, the plaintiff's main claim and the defendant's counterclaim are all groundless, they are dismissed.

[Attachment]

Judges Doz.