[1] The validity of the principal registration made in violation of Articles 3 and 4 of the Provisional Registration Security Act (negative) and whether the invalid registration becomes effective registration in accordance with the substantive legal relations (affirmative)

[2] The case holding that the liquidation agreement on the transfer security interest is null and void pursuant to Article 4 (4) of the Provisional Registration Security Act because it is a special agreement that reduces the liquidation period under the Provisional Registration Security Act, and it is not contrary to Article 4 (2) of the same Act and it cannot be deemed that the appraised value of the secured real estate under the settlement agreement

[3] The case holding that the liquidation agreement on the transfer security interest shall be calculated on the basis of the value of the collateral at the time of the agreement, on the ground that the settlement agreement on the transfer security interest becomes null and void but becomes effective as a notification on the exercise

[1] Articles 3 and 4 of the Provisional Registration Security Act / [2] Articles 3 (1), 4 (2), and (4) of the Provisional Registration Security Act / [3] Articles 3, 4 (1), (2), and (4) of the Provisional Registration Security Act

[1] Supreme Court Decision 2002Da9127 delivered on April 23, 2002, Supreme Court Decision 99Da41657 delivered on June 11, 2002 (Gong2002Ha, 1605) Supreme Court Decision 2002Da42001 Delivered on December 10, 202 (Gong2003Sang, 342)

Plaintiff (Law Firm Kim & Yang World, Attorneys Cho Jin-jin et al., Counsel for plaintiff-appellant)

Defendant (Attorney Choi Byung-il, Counsel for the defendant-appellant)

Changwon District Court Decision 2005Na8563 Decided June 29, 2007

The part of the conjunctive claim in the judgment below is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The defendant's remaining appeal is dismissed.

We examine the grounds of appeal.

1. Facts recognized by the court below

A. Nonparty 1 tried to purchase the instant real estate by adding up the land of Nonparty 2 and the land of Nonparty 148 square meters (hereinafter “instant real estate”) prior to the subdivision in Kim Jong-gu, Kim Jong-do (hereinafter “the instant forest”). However, on April 11, 2000, Nonparty 1 suggested that he would purchase the instant real estate and purchase it jointly with one-half shares, while he would be able to enjoy a lot of profits in the future when he purchased the instant real estate from the Plaintiff around April 11, 200, while he was considering the shortage of funds.

B. Prior to this, Nonparty 1 and Nonparty 2 were in almost less than 230 million won in selling and selling the instant real estate with Nonparty 2, but using the Plaintiff’s failure to know of the shocked sale price, Nonparty 1 made a false statement that the said real estate was sold at KRW 360 million, thereby jointly investing KRW 180 million, respectively.

C. On April 12, 200, Nonparty 1 entered into a sales contract with Nonparty 2 with respect to the instant real estate as KRW 230 million, and with Nonparty 1 as the purchaser Nonparty 1. Nonparty 1 received KRW 18 million as the down payment for the purchase price of KRW 180 million of the instant real estate from the Plaintiff, not aware of this fact. Nonparty 1 received KRW 50 million as the intermediate payment around May 2, 200.

D. However, Nonparty 1 paid 2 million won in one’s own money of KRW 18 million, which he received from the Plaintiff as the down payment, to Nonparty 2 as the down payment, and the said KRW 50 million, which was received from the Plaintiff as the intermediate payment, was not paid to Nonparty 2, but invested to Nonparty 3 as the bid price for the auction real estate.

E. Meanwhile, around April 14, 200, Nonparty 1 borrowed KRW 48 million from Nonparty 4 as the price for the instant real estate and agreed to repay the said money until May 30, 200, and completed the registration of ownership transfer with respect to Nonparty 1/2’s share out of the instant real estate as the collateral of this case under the name of Nonparty 4’s mother. However, if Nonparty 1 fails to repay the said money, Nonparty 1 promised to revert the ownership of the said share of 1/2 to the Defendant on a conclusive basis.

F. On May 18, 200, Nonparty 5, who was delegated by Nonparty 1, ordered the Plaintiff to confiscate the down payment, and received KRW 162 million as a balance for the 1/2 share of the instant real estate under the pretext of the remainder of the 1/2 share of the instant real estate, and then Nonparty 1 paid KRW 210 million for the actual remainder of the sale of the instant real estate by Nonparty 1, who was borrowed from Nonparty 4.

G. After that, on May 2, 200, the plaintiff, the non-party 1, and the non-party 4 entered into a registration of ownership transfer on the whole real estate of this case at the (name omitted) certified judicial scrivener office located in Dong-dong, Kim Jong-dong, Kim Jong-si, and agreed to register the plaintiff's shares in the way that the defendant files a registration of ownership transfer right claim with respect to the forest of this case. Accordingly, on April 24, 2000, the registration of ownership transfer under the name of the defendant was made on the ground of sale as of April 18, 200, and on June 16, 200, the registration of ownership transfer right claim for the part of the forest of this case was made on the same day in the future of the plaintiff on the same day.

H. Meanwhile, in addition to the above 48 million won, Nonparty 4 loaned to Nonparty 1 the amount equivalent to KRW 70 million for the land that was separately purchased by Nonparty 1, Kim Young-dong 642-11, Sejong-si, Kim Jong-si, and completed the registration of ownership transfer under the name of the Defendant on the land above 642-11, Sam-dong. However, Nonparty 1 notified Nonparty 1 of the purport that, on May 26, 2000, the ownership of Nonparty 1 out of the instant real estate is finally reverted to the Defendant if he did not repay the principal and interest of the above loan by the 31st day of the same month, and notified Nonparty 1 of the purport of confirming it on June 1, 200.

I. On July 24, 200, Nonparty 4 and Nonparty 1 prepared a written agreement that, in case where Nonparty 1 fails to pay the sum of KRW 177,00,000,000, including the amount loaned by the Defendant to Nonparty 1, by August 25, 2000, Nonparty 1’s share in the instant real estate shall be fully reverted to the Defendant. However, in case where the above KRW 177,00,000 is paid by the above date, the above share shall be transferred to Nonparty 1, but it shall be included in the above payment amount and the remaining additional amount shall be separately paid to Nonparty 1 (hereinafter “instant liquidation agreement”).

2. Regarding ground of appeal No. 2

This part of the assertion is, in light of the reasons alleged in the assertion, that an implied payment in lieu of, or a reversion of, the portion of the forest of this case ought to be deemed to have been made with respect to the portion of 1/2 of the forest of this case, in light of the purport that an implied payment in lieu of, or a reversion of, the forest of this case ought to be deemed to have been performed. However, it is not a legitimate ground of appeal as it is a new assertion in the trial. Moreover, it

3. Regarding ground of appeal No. 1

A. The court below held that, since the transfer registration of ownership in the name of the defendant with respect to a share in 1/2 of the forest of this case was made by a transfer agreement subject to the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”), in order for the defendant as a mortgagee to acquire ownership, in accordance with the liquidation procedures prescribed in Articles 3 and 4 of the Provisional Registration Security Act, when the defendant as a mortgagee notified the non-party 1 of the appraised amount of the liquidation amount through the exercise of a security right, and there is no payment of the liquidation amount or there is no payment of the liquidation amount, the liquidation period for 2 months from the date the non-party 1 was notified. The non-party 1, the debtor, also has the right to still claim the defendant to the liquidation amount after deducting the secured amount from the value of share in 1/2 of the forest of this case pursuant to Articles 3 and 4 of the Provisional Registration Security Act, and further, according to Articles 3 and 4 of the Provisional Registration Security Act, the liquidation amount can be calculated at the time of the settlement of this case's claim.

B. In light of the provisions of Articles 3 and 4 of the Provisional Registration Security Act, if the principal registration based on the provisional registration for security was made in violation of the above provisions, the principal registration is null and void, and even if the principal registration was made by a special agreement between the person having the right to provisional registration and the debtor, if the special agreement is null and void because it is unfavorable to the debtor, such special agreement is still null and void. However, if the person having the right to provisional registration notifies the debtor, etc. of the appraised value of the liquidation money in accordance with the procedures provided for in Articles 3 and 4 of the Provisional Registration Security Act, and there is no liquidation amount to pay or pay the liquidation money to the debtor, the above registration can be valid after the period of liquidation expires two months from the date the debtor is notified of the liquidation (see Supreme Court Decision 2002Da42001, Dec. 10, 2002, etc.). The same applies to the case of a transfer for security for which the ownership is registered

In light of the timing and contents of the liquidation agreement of this case revealed by the facts duly confirmed by the court below, in order to exercise the security right to the shares of 177 million won in the forest of this case and the land of this case 642-11, which is the object of transfer for security, the liquidation agreement of this case shall be deemed to be null and void pursuant to Article 4 (2) of the Provisional Registration Security Act, since the defendant evaluated each of the above real estate as 177 million won in order to exercise the security right to the forest of this case and the land of this case 642-11, which is the object of transfer for security, and the obligation to the defendant of this case to the defendant of this case shall be reverted to the defendant, and the liquidation amount shall be determined as the liquidation amount after deducting the secured debt amount for each of the above land until the time, and the liquidation amount shall be paid by the method of offsetting other claims against the defendant of this case. This is a special agreement to reduce the liquidation period under the Provisional Registration Security Act, and since there is no adequate value of each of the above real estate under the record agreement, it shall be deemed null and void.

Therefore, the allegation in the grounds of appeal to the effect that the defendant has finally acquired 1/2 of the forest land of this case according to the liquidation agreement of this case is without merit.

C. However, even if the liquidation agreement of this case is null and void, it shall be deemed that the liquidation agreement of this case contains an expression of intent to exercise the security right by setting the amount between the defendant and the non-party 1 at the time the liquidation amount of one-half portion of the forest of this case is appraised by the non-party 1. Thus, it shall be deemed that the settlement amount for one-half share of the forest of this case shall be calculated based on the value of one-half share of the forest of this case as at the time of the liquidation agreement of this case.

Nevertheless, the court below calculated the liquidation amount based on the value of 1/2/10 of the forest of this case as of the date of the closing of argument on the ground that the defendant mispercing that he did not notify the non-party 1 of the exercise of the security right (the non-party 1 could not seek settlement money to the defendant, if the defendant was deemed to have not notified the non-party 1 of the exercise of the security right as to 1/2/10 of the forest of this case as of the date of the closing of argument). The judgment of the court below is erroneous in the misapprehension of legal principles as to the notification of the exercise of the security

4. The Defendant appealed to the entirety of the conjunctive claims in the lower judgment, but did not submit the grounds of appeal as to the claim for ownership transfer registration.

5. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part concerning the claim for monetary payment among the conjunctive claims of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's remaining grounds of appeal are dismissed, and it is so decided as per Disposition

Justices Lee Hong-hoon (Presiding Justice)