[Judgment of the court below]

Defendant (Law Firm Lee & Lee, Attorneys Kang Jong-ho et al., Counsel for the defendant-appellant)

May 24, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant will implement the procedure for the cancellation registration of transfer of ownership, which was completed on June 23, 2006 by the Busan District Court Branch Branch of the Incheon District Court as to the real estate stated in the attached list, as to the plaintiff.

1. Basic facts

A. As to the real estate listed in the attached list owned by the Plaintiff (hereinafter “instant real estate”), the provisional registration of the right to claim ownership transfer (hereinafter “the instant provisional registration”) was completed as of November 28, 2005 by the Busan District Court Branch No. 157928, Nov. 28, 2005, and the registration of ownership transfer (hereinafter “the instant registration”) based on sale under the receipt No. 77386, Jun. 23, 2006, as of June 23, 2006.

B. Around the time of the provisional registration of the instant case, the Plaintiff assumed the Defendant’s obligation to borrow the loan, etc., but to secure this, the right to collateral security was set up 2 or 5 as follows. After completing the provisional registration of the instant case, the right to collateral security between the Defendant and the Defendant’s husband was revoked.

In addition, around the time of the provisional registration of this case, the registration of the establishment of the establishment of the neighboring Saemaul Bank Nos. 1 and the registration of the seizure of No. 6 of the Nowon-gu Seoul Special Metropolitan City, the amount of 10,397,900 on June 9, 2005 was completed. The value of the real estate of this case at the time of the registration of the transfer of ownership of this case is KRW 520,00,000 (the fact that there is no dispute).

The maximum debt amount of 1.30,00,000 won on October 31, 2002 30,00,000,000 won on the date of cancellation of the right to collateral, 2.30,000,000 won on the date of cancellation of the right to collateral, 1.30,000,000 won on the 40,00,000,000,000 won on the 18, 29,00,000,000 won on the 178,00,00,000,000 won on the 17,00,00,000,000 won on the 17,00,000,000 won on the 20,000,000 won on the 13,07,000,000 won on the 1,005,00 won on the 1,205,005.

C. After completing the registration of transfer of ownership in this case, the Defendant cancelled the above collateral on December 29, 2006 after repaying the Plaintiff’s debt to the Busan Saemaeul Community Depository. Moreover, on December 2, 2005, the Defendant repaid the amount of 10,397,900 won in arrears to the Seocheon-si, Seocheon-si and then cancelled the above attachment registration.

D. On the other hand, on November 28, 2005, the Defendant prepared a letter to the Plaintiff stating that “When the principal and interest were repaid at 100%, the principal and interest would be immediately rescinded.”

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1, 2, 2 through 5, and purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The provisional registration of this case is to secure the Plaintiff’s obligation to borrow KRW 178,00,000 against the Defendant as of February 7, 2005, and the obligation to borrow KRW 100,000,000, in total, and the obligation to borrow KRW 188,00,000 on February 25, 2005. The registration of transfer of ownership of this case was completed without undergoing liquidation procedures prescribed by the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”). Thus, the registration of transfer of ownership of this case was completed without undergoing liquidation procedures as of February 25, 2005.

B. Defendant’s assertion

Inasmuch as the provisional registration of this case is not for bond security, it is not necessary to go through liquidation procedures prescribed in the Act on Participation in the Registration of Ownership of this case. Even if the provisional registration of this case is for securing the Plaintiff’s obligation to borrow 200,000,000 won to the Defendant (the total amount of borrowed money of KRW 190,000,000 as of February 7, 2005 and the subsequent borrowed money of KRW 100,000,000 as of February 25, 2005), there is no settlement money to be paid to the Plaintiff, and thus there is no settlement money to be paid to the Plaintiff. Even if it is necessary to notify the Plaintiff of the liquidation of the provisional registration of this case, the registration of this case is valid since there is no liquidation money to be paid to the Plaintiff as the delivery of a copy of the legal brief as of April 25, 2017. In addition, in light of the Plaintiff’s acts between them, seeking cancellation of ownership transfer registration of this case is contrary to the doctrine of title.

3. Determination

A. The nature of the provisional registration of this case

1) Whether a provisional registration is a provisional registration for security shall not be determined formally by the type of documents received when indicating or registering the registration record, but shall be determined by the substance of the transaction and the interpretation of the intent of the parties (see Supreme Court Decision 91Da36932, Feb. 11, 1992, etc.).

2) In the case of this case, as seen earlier, ① written statement of the purport that the Defendant would immediately cancel the provisional registration of this case at the time when the principal and interest was repaid to the Plaintiff on November 28, 2005, ② the Plaintiff was liable for the loan to the Defendant (as seen earlier, there is a dispute between the parties regarding the amount of the loan). ③ After the provisional registration of this case was completed, the right to collateral security in the name of the Defendant or Nonparty 2 was entirely cancelled, ④ The general practices of transaction taking the form of sale and purchase promise even when the provisional registration of this case was made at the time of the establishment of security provisional registration, it is reasonable to view that the provisional registration of this case is a provisional registration of security established to secure the Plaintiff’s obligation to borrow the principal and interest of the Defendant, as alleged by the Plaintiff.

Meanwhile, in 520,00,000 of the value of the real estate of this case, the amount obtained by deducting the amount of 230,000,000,000 won as the secured claim of senior collateral and the amount of 10,397,900 won in arrears following the registration of the seizure of the Young-si, Seocheon-si (Seoul) from the value of the real estate of this case, is 279,602,100 won (520,000,000-230,000-10,397,90 won). This is obvious that it exceeds the Plaintiff’s loan principal and interest (18,00,000,000 won according to the Plaintiff’s assertion, according to the Defendant’s assertion, the provisional registration of this case is governed by the Act on Participation in the Provisional Registration.

B. Whether the ownership transfer registration of this case is valid

1) 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 has been made in violation of each of the above provisions, the principal registration shall be null and void. Even if the principal registration was made by a special agreement between the right holder of provisional registration and the debtor, if the special agreement is null and void because it is unfavorable to the debtor, the principal registration shall be null and void, and it shall not be deemed null and void within the purpose of the security (see Supreme Court Decision 99Da41657, Jun. 11, 2002, etc.).

2) In light of the above legal principles, as long as the provisional registration of this case is a provisional registration for security, the registration of transfer of ownership of this case, which is the principal registration based thereon, shall undergo liquidation procedures prescribed by the Act on Participation in the Registration of Transfer. However, there is no dispute between the parties that the defendant did not undergo liquidation procedures prior to the registration of transfer of ownership of this case, barring any special

C. The assertion that the registration of ownership transfer of this case is valid in accordance with the substantive relationship

1) On November 2009, the Defendant made no settlement amount to be paid to the Plaintiff by paying the Plaintiff’s debt 113,987,100 won to Nonparty 5, instead of the Plaintiff’s debt 113,987,100 won. Since the Defendant notified the Plaintiff of the above contents by serving a duplicate of the preparatory document as of April 25, 2017, the Defendant asserts that the instant transfer of ownership was effective registration.

On the other hand, where a person entitled to provisional registration notifies an obligor, etc. of the appraised value of the liquidation amount in accordance with the procedures provided for in Articles 3 and 4 of the Provisional Registration Security Act, and there is no reasonable liquidation amount or no liquidation amount to be paid to the obligor, the above invalid registration may become effective registration in accordance with the substantive legal relations upon the lapse of the period of liquidation of two months from the date the obligor receives such notification (see Supreme Court Decision 2002Da4201, Dec. 10, 2002, etc.).

In this case, on November 2009, the Defendant subrogated the Plaintiff’s debt amounting to Nonparty 5 of KRW 113,987,100 to Nonparty 5 by means of no dispute between the parties, or by the statement in the evidence No. 1 to 3, and No. 2, and calculated the amount of the Plaintiff’s credit against the Defendant as of the date of payment by subrogation, barring any special circumstance, the Defendant would pay the Plaintiff the amount of the Plaintiff’s credit amount of KRW 230,000,000, which is the amount of the claim secured by priority right of KRW 520,000 and KRW 10,397,90,000, which is the amount calculated by deducting the amount of the Plaintiff’s credit secured by priority right of KRW 188,00,000 from the amount of the Plaintiff’s credit secured by priority right of KRW 520,000,000 according to the Plaintiff’s assertion, according to the Defendant’s assertion, the amount of subrogation would be paid to the Plaintiff.

2) As to this, the Plaintiff subrogated for the acquisition tax and registration tax of KRW 15 million following the transfer registration of ownership of the instant real estate to be borne by the Defendant. ② The Plaintiff paid KRW 27,100,000 as the principal and interest of the instant real estate from March 8, 2005 to November 28, 2005, and paid KRW 7,100,50 as the sum from December 27, 2005 to June 23, 2006. From June 30, 2006 to September 22, 2008, the Plaintiff paid KRW 21,955,15,000 in aggregate to pay KRW 56,156,00 in aggregate to the Plaintiff as the principal and interest of the instant real estate, ③ The Defendant’s repayment of KRW 600,000,000 in aggregate including the acquisition of the principal and interest of the instant real estate from March 8, 2005 to November 28.

In light of the above evidence, Gap 6, 10, 11, and Eul 3-1 to 3-4 of the plaintiff's 500,000 won as the whole, it is difficult to view that the plaintiff's 500,000 won was paid to the non-party 2's principal and 500,000 won as the loan 50,000 won as the loan 50,000 won was paid to the non-party 2,000 won as the loan 50,000 won as the loan 50,000 won as the loan 50,000 won was paid to the non-party 2,000 won as the loan 50,000 won as the loan 50,000 won as the loan 50,000 won as the loan 106,000 won as the principal and 506,000 won as the loan 20,000 won.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Kim Sung-won

(1) According to the preparatory documents submitted by the Plaintiff on April 25, 2017, KRW 34,200,50 (=27,100,000 + KRW 7,100,50) is deemed as a monthly interest of KRW 1,790,020 when calculating monthly interest of KRW 1,790,020, and thus, it is actually recognized that it was paid as an interest.