[1] In a case where multiple creditors enter into one sale contract with the debtor and the debtor-owned real estate as joint buyers for the security of credit and complete provisional registration under the joint name, the form of attribution of the right to complete completion of the sale contract

[2] In a case where Party A, while lending money to Party B, concluded a trade reservation with other creditors of Party B for the purpose of collateral, and completed provisional registration by specifying shares in proportion to the amount of each party’s claim, the case affirming the judgment below holding that Party A may independently exercise the right to complete the purchase and sale reservation with respect to his own shares and seek the implementation of the principal registration procedure

[3] In a case where multiple creditors, who completed the registration of security under a joint name, have a separate and independent right to complete a pre-sale agreement by shares of each creditor, whether one of the creditors can seek the implementation of the principal registration procedure of transfer of ownership after performing the liquidation procedure as to his/her shares (affirmative)

[1] In a case where several creditors have concluded one pre-sale agreement with several creditors on real estate owned by the debtor as joint buyers in order to secure each term credit, and accordingly provisional registration is completed in real estate under the joint name of several creditors, whether several creditors have the right to complete the pre-sale agreement or whether each creditor has an independent right to complete the purchase and sale agreement shall follow the content of the pre-sale agreement. In a case where such content is not expressly provided in the pre-sale agreement, the motive and circumstance leading up to the conclusion of the pre-sale agreement, the purpose of the security to be achieved by the pre-sale agreement, the existence of the intent to jointly exercise the security-related rights, the specific share ratio of each creditor and the share ratio, and the practice of establishing the provisional registration security right shall be determined by comprehensively taking into account the following factors.

[2] In a case where Party A, while lending money to Party B, entered into a trade reservation with other creditors of Party B for the purpose of collateral, and completed provisional registration with a specific share in proportion to each other’s claim amount, the case affirming the judgment below holding that Party A can independently exercise the right to complete the purchase and sale reservation as to his/her share in the collateral, on the ground that Party A has a separate and independent right to complete the purchase and sale reservation, and accordingly, Party A can independently seek the implementation of the principal registration procedure based on provisional registration.

[3] In a case where multiple creditors who have completed the registration of security under a joint name have a separate and independent right to complete a pre-sale agreement by their shares, one of the creditors can independently demand the execution of the principal registration procedure of transfer of ownership after performing the liquidation procedure under the Provisional Registration Security Act as to their shares.

[1] Article 564 of the Civil Act / [2] Article 564 of the Civil Act, Article 67 of the Civil Procedure Act / [3] Article 564 of the Civil Act, Article 3 and Article 4 of the Provisional Registration Security Act

[1] Supreme Court Decision 83Meu2282 delivered on June 12, 1984 (Gong1984, 1272) (amended) Supreme Court Decision 84Meu2188 delivered on May 28, 1985 (Gong1985, 908) (amended) (Gong1985, 147), Supreme Court Decision 85Meu2203 delivered on May 26, 1987 (amended by Presidential Decree No. 1987, 1049) (amended by Presidential Decree No. 1985, Oct. 8, 1985)

Plaintiff

Defendant

Seoul Central District Court Decision 2010Na21114 Decided September 17, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. In a case where several creditors have concluded one pre-sale agreement with several creditors on real estate owned by the debtor and joint buyers and completed provisional registration on real estate under the joint title of several creditors, whether several creditors have the right to complete the pre-sale agreement or whether each creditor has an independent right to complete the purchase and sale agreement shall follow the content of the pre-sale agreement. In a case where such content is not expressly provided in the pre-sale agreement, the determination should be made by comprehensively taking into account the motive and circumstance leading up to the conclusion of the pre-sale agreement, the purpose of the security to be achieved by the pre-sale agreement, whether several creditors intend to jointly exercise the security-related rights, whether they intend to indicate the specific share of each creditor, whether they have the right to complete the purchase and sale agreement, and whether each creditor has the right to complete the provisional registration agreement.

In a case where several creditors and debtors have concluded one pre-sale agreement with respect to real estate owned by the debtor as a right holder in order to secure several creditors' claims against one debtor and completed provisional registration accordingly, the Supreme Court Decisions 83Meu2282 Decided June 12, 1984, which states that, regardless of the content of the pre-sale agreement or the intent of the parties related to the exercise of the right to complete the pre-sale agreement, several creditors shall have the right to complete the purchase and sale agreement jointly with each other, and that the declaration of intent to complete the purchase and sale agreement shall also be jointly exercised by several creditors, shall be modified to the extent that it conflicts with this Opinion.

B. On March 11, 2005, the lower court determined that the Plaintiff entered into a pre-sale agreement with Nonparty 1,2,3,4, and5, who is another creditor of the Defendant, for the purpose of lending KRW 100 million to the Defendant, with respect to the share of KRW 1,607 (hereinafter “instant collateral”) owned by the Defendant among the real estate in the name of Nonparty 1,617, which is the other creditors of the Defendant. Accordingly, the lower court determined that the Plaintiff’s share of KRW 241,050 (hereinafter “instant share”), including the share of KRW 2,498,265,250, and the share of KRW 2,498,265, Nonparty 2, Nonparty 3, Nonparty 2, 265, and Nonparty 2, 2,498, 265, and Nonparty 2,425,265, 298, 265, and 268, 265, and 265, respectively, of share of the Plaintiff’s share of this case.

In light of the above legal principles, the judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the exercise of the right to complete purchase and sale reservation and essential co-litigation.

2. Regarding ground of appeal No. 2

In a case where several creditors who have completed the provisional registration of security in a joint name have a separate and independent right to the completion of the principal registration procedure of transfer of ownership after independently performing the liquidation procedure prescribed by the Provisional Registration Security Act with respect to their shares, one of the creditors can request the execution of the principal registration procedure of transfer of ownership after performing the liquidation procedure

The judgment of the court below to the same purport is just in accordance with the above legal principles, and there is no error of law by misapprehending the legal principles as to notification of exercise of security rights under the Provisional Registration Security Act.

3. Conclusion

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

Justices Yang Sung-tae (Presiding Justice)