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(영문) 서울고법 1973. 12. 6. 선고 73나1093 제6민사부판결 : 상고
[토지소유권이전등기청구사건][고집1973민(2), 421]
Main Issues

In cases where an agreement on the transfer of ownership on real estate exists for the purpose of securing bonds, whether a registration of ownership transfer may be sought based on sale.

Summary of Judgment

Even though the agreement of the transfer of ownership of real estate was made and the sale certificate was prepared for the purpose of securing the right to collateral, the creditor can seek the implementation of the transfer registration procedure based on the acquisition of the right to collateral, but it is not possible to seek the implementation of the transfer registration procedure based on the real cause

[Reference Provisions]

Article 186 of the Civil Act

Reference Cases

Supreme Court Decision 74Da64 delivered on November 26, 1974

Plaintiff 1, Appellant

Plaintiff

Defendant, Appellant

Defendant

Judgment of the lower court

Daejeon District Court of the first instance (73Gahap41 delivered on April 1, 200)

Text

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

Purport of claim

On March 3, 1971, the defendant completed the procedure for the registration of transfer of ownership by the sale on March 3, 1971 with regard to the amount of 62,636 decided on the ground that the plaintiff was inside Seosan-gun, Seosan-gun. The costs of the lawsuit shall be borne by the defendant.

Purport of appeal

Judgment like the Disposition

Reasons

On March 3, 1971, the plaintiff purchased the above land owned by the defendant's 190,00 won and paid the price for the above land. Since the defendant did not execute the procedure for the registration of transfer of ownership of this case, it is argued that the defendant did not have reached this claim. Accordingly, the defendant's testimony at the original court and the first instance court's trial witness's testimony and the second instance court's trial witness's testimony cannot be acknowledged as the result of the above non-party 1's testimony and the first instance court's proof of criminal records at the above court's trial, and it is hard to believe that the defendant's above facts were not attributable to the non-party 1's non-party 1's sale of this case's purchase and sale of this case's land. The plaintiff's purchase and sale of this case's 90,000 won to the defendant's 1's above 97,000 won, and there is no dispute over the establishment of the above plaintiff's above 1's ownership and the first instance court's opinion.

Therefore, the plaintiff's claim is dismissed without merit, and the judgment of the original court that differs from this conclusion is unfair, so the defendant's appeal is justified, and therefore, the defendant's appeal is accepted, and the costs of the lawsuit are assessed against the plaintiff who lost both the first and second trials. It is so decided as per Disposition.

Judges Kim Young-ho (Presiding Judge)

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