Kim Jong-chul (Attorney Lee Jong-sik et al., Counsel for the defendant-appellant)

(1) A person who is a party to a contract shall be liable for damages or losses.

May 17, 2006

Daejeon District Court Decision 2005Gadan8078 Delivered on August 23, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall implement the procedure for the cancellation registration of the establishment registration of neighboring mortgage completed by the Daejeon District Court on June 11, 2001, which was completed by the receipt No. 39614, with respect to the registration of the establishment of neighboring mortgage on the area of Daejeon Dong-gu (detailed number omitted) 692.9 square meters.

2. Purport of appeal

The same shall apply to the order.

1. A basic fact that has no dispute;

On June 11, 2001, the registration of the establishment of the neighboring mortgage (hereinafter “registration of the establishment of the neighboring mortgage”) was completed on the Dong-gu, Daejeon (Seoul) and 692.9 square meters (hereinafter “the instant land”) owned by the Plaintiff, Daejeon District Court, Daejeon District Court, which received the registration office of Daejeon, which received the non-party as a mortgagee, pursuant to Article 39614 (hereinafter “registration of establishment of the neighboring mortgage”). On March 23, 2004, the registration of the relocation of the right to collateral security was completed in the future for the Defendant as the receipt of the same registration office on March 2

2. The allegations by the parties and the judgment thereof

A. The plaintiff asserts that since the registration of the establishment of a mortgage of this case, which was made by the non-party as a collateral security, was null and void without any cause, the defendant, who completed the additional registration based on this, is liable to implement the procedure for registration of the cancellation of the establishment

On this point, the defendant asserts that the registration of the establishment of the neighboring mortgage of this case is valid registration completed by agreement with the plaintiff.

(b) Fact of recognition;

(1) On March 21, 2001, the Plaintiff entered into a sales contract with the Defendant with the following terms.

① The Defendant purchase the instant land owned by the Plaintiff and the instant land, and the al.C. Madrobal roof 6th floor buildings (hereinafter “instant building”).

② The instant building was owned by the Dongjin-gu Co., Ltd. and was in progress with auction procedure at the time. The Defendant acquired the building by means of receiving a direct bid, and the Plaintiff decided to actively cooperate (the Plaintiff decided to transfer all the rights to the Defendant in the state of winning the lawsuit, such as removal of the building, to the said company).

(3) The purchase price shall be determined as KRW 1.45 billion, and the down payment shall be paid in installments of KRW 250 million, intermediate payment of KRW 400 million, and the balance of KRW 800 million.

(2) During that period, the Defendant paid the Plaintiff the down payment of KRW 250 million on March 22, 2001, and the intermediate payment of KRW 400 million on April 26, 2001, respectively.

(3) Upon delay in the auction procedure for the building of this case, the plaintiff paid 8% interest per annum to the defendant from May 17, 2001 to the auction date of the building of this case on May 8, 2001, and in the case that the plaintiff did not complete the contract execution by May 16, 2002, the plaintiff cancelled the contract of this case and returned the principal received by the plaintiff to the defendant, and (3) in order to secure the above interest and return of principal, the plaintiff agreed to complete the registration of creation of the first-class mortgage with the defendant as the right to collateral security on the land of this case.

(4) After that, on June 2001, the Plaintiff and the Defendant delayed the implementation of the registration of the establishment of a neighboring mortgage, on the basis of the relationship between the owner of the instant building and the third party, the Plaintiff and the Defendant completed the registration of the establishment of a neighboring mortgage in the name of the Nonparty, who is the Defendant’s Dong, and subsequently, transferred the registered mortgage in the name of the Defendant.

[Identification Evidence] Gap evidence Nos. 1 through 4, 6 (part) evidence, Eul evidence Nos. 1 through 4, 6, 7 (including paper numbers), part of witness of the trial court (name omitted), the defendant's inquiry, and the purport of the whole pleadings

[Evidence Evidence] Part of Evidence No. 6, Part of Evidence No. 5-4, 6, and 7, and part of the testimony of the above (Witness)

C. Determination

According to the above facts, since the registration of establishment of a mortgage of this case was completed by agreement between the plaintiff and the defendant to secure 650 million won of the above purchase price, the plaintiff's assertion is without merit ( even if the registration of establishment of a mortgage of this case was invalidated, the supplementary registration in the name of the defendant is valid in accordance with the substantive relationship. In addition, the plaintiff had no objection to the registration of establishment of a mortgage of this case in the name of the non-party until the defendant applied for voluntary auction on April 7, 2004, although he knew about the registration of establishment of a mortgage of this case in the name of the non-party and the registration of establishment of a mortgage in the name of the defendant

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed.

Judges Park Jong-chul (Presiding Judge)