[1] The validity of the establishment registration of a neighboring mortgage in the name of a third party, other than a creditor (limited to the validity)

[2] The case where an implied agreement or ratification on the usefulness of the registration of invalidation is recognized

[3] Where the establishment registration of a neighboring mortgage was completed in a name of a third party, other than a creditor, and the creditor received a supplementary registration for the transfer of the right to collateral security, whether the said establishment registration conforms to the substantive relationship (affirmative with qualification)

[4] Where a provisional registration of a right to claim a transfer of ownership has been made on any real estate registered in the name of a third party, other than the creditor, and the additional registration of the transfer of the right to collateral was made in the name of the creditor, the case holding that the establishment registration of the right to collateral transfer cannot be deemed a valid registration

[1] Since the right to collateral security is established for the purpose of collateral security, in principle, the creditor and the mortgagee should be the same person. However, in the event that the right to collateral security is established with the third party as the holder of the right to collateral security, there is an agreement between the creditor, the debtor and the third party on this point, and only in special circumstances where the right to collateral security has been actually attributed to the third party by means of assignment of the right to collateral, the contract for the third party, and the formation of an indivisible relation

[2] Although an agreement or ratification regarding the usefulness of a registration of invalidation may be made impliedly, in order to recognize such an implied agreement or ratification, there is a special circumstance to deem that the registration of invalidation has been abandoned for a long time due to its intent to use the registration of invalidation, such as a lack of objection without filing a long-term objection to the registration of invalidation, and an act expected under the premise that the registration is valid with the knowledge of its invalidation, or a neglect to appear, etc.

[3] Whether the registration conforms to the substantive legal relationship refers to the fact that the registration is consistent with the true legal relationship even if there is any defect in the registration procedure. If, although the creditor entered into a contract to establish a mortgage with the debtor, the registration of establishment of a mortgage was made in the name of a third party, not the creditor, in the name of the creditor, and the creditor was again transferred the mortgage by means of an additional registration of establishment of a mortgage as to the above establishment of a mortgage, the above establishment of a mortgage can be deemed a valid registration that

[4] Where a provisional registration of a right to claim a transfer of ownership has been made on a real estate registered in the name of a third party, other than the creditor, and thereafter a supplementary registration for the transfer of ownership to the creditor's name has been made, the creditor shall acquire the right to collateral only at the time the said supplementary registration has been made, and the creditor shall acquire the right to collateral at the time the order of priority of the principal registration is based on the order of priority of the principal registration, and the creditor shall acquire the right to collateral at the time the registration was made in the name of the third party, and the priority is higher than that of the above provisional registration, and the registration for the establishment of a transfer of ownership is not deemed valid.

[1] Article 103 of the Civil Act / [title trust] Articles 361, 369 of the Civil Act, Article 3 of the Act on the Registration of Real Estate under Actual Titleholder's Name / [2] Article 139 of the Civil Act / [3] Article 186 of the Civil Act / [4] Article 186 of the Civil Act, Article 6 (1) of

[1] Supreme Court Decision 200Da49879 Decided December 12, 200 (Gong2001Sang, 281) Supreme Court en banc Decision 99Da48948 Decided March 15, 2001 (Gong2001Sang, 873) Supreme Court Decision 2002Da50484 Decided December 24, 2002 (Gong2003Sang, 444) / [2] Supreme Court Decision 90Da1752 Decided March 27, 191 (Gong191, 1269)

Plaintiff (Attorney Lee Jong-gu, Counsel for plaintiff-appellant)

Defendant (Attorney Cho Jae-soo et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2005Na8475 Decided June 28, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Since the right to collateral security is established for the purpose of collateral security, in principle, the creditor and the mortgagee should be the same person: Provided, That in the event that the right to collateral security is established with the third party as the holder of the right to collateral security, there is an agreement between the creditor, the debtor and the third party on such point, and there is no special circumstance to deem that the right to collateral security has been substantially reverted to the third party by means of assignment of the right to collateral, contract with the third party, formation of indivisible relationship, etc. (see Supreme Court en banc Decision 9Da48948, Mar. 15, 2001, etc.).

However, even according to the facts acknowledged by the court below, there was an agreement between the plaintiff and the defendant to register the establishment of a mortgage in the name of the non-party 1. Even if the non-party 1 was recognized as having reached the above agreement, there is no assertion or proof as to the fact that the defendant's claim against the plaintiff was actually reverted to the non-party 1. Thus, the registration of the establishment of a mortgage of this case, which was made in the name of the non-party 1, the non-party 1, who is not the creditor under the contract to establish a mortgage, concluded between the plaintiff and the defendant, is null and void due to the lack of the

Nevertheless, the court below determined that the establishment registration of a mortgage of this case was valid registration by agreement between the plaintiff and the defendant. In so doing, the court below's fact-finding and judgment erred by misunderstanding facts in violation of the rules of evidence or misunderstanding legal principles as to the subsidiary nature of the right to collateral security, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit

2. Regarding ground of appeal No. 2

An agreement or ratification with respect to the usefulness of a registration of invalidation may be made implicitly, but in order to recognize such implied agreement or ratification, there is a special circumstance to deem that the registration was void because it was not sufficient to raise an objection for a long time without being aware of the registration of invalidation, and that it was neglected for a long time due to the intent to use the registration of invalidation, such as an act expected to be valid with the knowledge that the registration is invalid, or an act expected with the knowledge of its invalidation, or an act of appearance (see Supreme Court Decision 90Da17552, Mar. 27, 191, etc.

However, according to the records, there is no evidence to prove the above special circumstances, and rather, the plaintiff requested the defendant to withdraw the above application for auction when the auction procedure on the land of this case was commenced in the name of the defendant with regard to the registration of creation of a collateral security right in the name of the defendant, and as the defendant refused to do so, the plaintiff filed the lawsuit of this case by asserting that the registration of creation of a collateral security right in this case was invalid which is not consistent with the substantial relation. Thus, it is difficult to view that the plaintiff agreed explicitly with the defendant to use the registration of invalidation or that the defendant explicitly ratified the defendant's utility

Nevertheless, the court below determined that the plaintiff and the defendant have impliedly agreed to use the registration of creation of a neighboring mortgage of this case which is null and void, or that the plaintiff had impliedly ratified the utility of the defendant's invalidation registration. Thus, the court below's findings of fact and judgment are erroneous in the misapprehension of legal principles as to implied agreements or ratifications in violation of the rules of evidence, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit.

3. Regarding ground of appeal No. 3

The fact that registration conforms to the substantive legal relationship refers to what defects exist in the registration procedure, which is consistent with the true legal relationship (see, e.g., Supreme Court Decision 93Da5777, Jun. 28, 1994). If, although a creditor entered into a mortgage agreement with a debtor, the creditor entered into the mortgage agreement with a debtor, but the registration of establishment of a collateral security was made in the name of a third party, not the creditor, and the creditor was again transferred the collateral security by means of an additional registration for the establishment of a collateral security for the above root, barring any special circumstance, the registration of establishment of a collateral security for the above period

However, according to the records, the provisional registration of the non-party 2's right to claim ownership transfer was completed on June 11, 2001, and the provisional registration of the non-party 2's right to claim ownership transfer was completed on December 27, 2003, and the additional registration of the transfer of the non-party 2's right to claim ownership transfer was completed on March 23, 2004. According to the above facts, the defendant acquired the right to collateral transfer only on March 23, 2004, for which the above additional registration was completed. The registration of the land of this case was made on March 23, 2004. The registration of the land of this case is based on the additional registration of the transfer of the non-party 1's right to claim ownership transfer, which was made by the defendant on June 1, 201, whose priority is decided to be based on the priority order of the principal registration. Thus, it cannot be viewed that the provisional registration is more effective than the above provisional registration.

Nevertheless, the court below's determination that the establishment registration of a new mortgage of this case conforms to the substantive relationship with another family and additional determination is not erroneous in the misapprehension of legal principles as to the registration consistent with the substantive relationship, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out also has merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)