[1] The method of notifying the execution of a provisional registration security right, and in a case where the liquidation amount assessed subjectively by the creditor falls short of the liquidation amount duly assessed, the validity of the notification (effective), and whether the debtor can claim the liquidation amount duly assessed (affirmative)

[2] The standard for determining whether a debtor can be deemed to have impliedly consented to a provisional registration security right's execution notice that there is no liquidation amount, where the debtor responded to a principal registration claim or a request for extradition without objection

[1] Articles 3, 4, and 11 of the Provisional Registration Security Act / [2] Articles 3, 4, and 11 of the Provisional Registration Security Act

[1] Supreme Court Decision 92Da10043, 10050 decided Sep. 1, 1992 (Gong1992, 2760) Supreme Court Decision 94Da3087, 3094 decided Jun. 28, 1994 (Gong1994Ha, 2096), Supreme Court Decision 96Da6974, 6981 decided Jul. 30, 1996 (Gong196Ha, 2650)

Plaintiff 1 and four others (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Go Jong-soo et al., Counsel for defendant-appellant)

Jeju District Court Decision 2004Na1639 delivered on June 1, 2005

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Jeju District Court Panel Division.

The grounds of appeal are examined.

1. In a notification of execution of a provisional registration security right given by a creditor under the Provisional Registration Security Act (hereinafter “Provisional Registration Security Act”) to acquire ownership of real estate for the purpose of security by executing a provisional registration security right, it is sufficient for a creditor to notify an obligor, etc. of the appraised value of the liquidation amount by specifying the value of real estate for the purpose of notification which the creditor has subjectively assessed and the amount of secured claim. Even if the amount of liquidation amount assessed by the obligee cannot reach the amount of liquidation amount duly assessed, it is sufficient for the obligee to make a principal registration based on the provisional registration even if the amount of liquidation amount assessed by the obligee is not equivalent to the amount of liquidation amount duly assessed,

In this case, the obligor, etc. may refuse the registration of ownership transfer and the performance of the obligation to deliver the target real estate until he/she properly contests the liquidation amount notified by the obligee and receives the liquidation amount assessed, or seek a cancellation of provisional registration completed for the purpose of securing the obligation by paying the entire amount of the secured obligation to the obligee, and seek a cancellation of provisional registration completed for the purpose of securing the obligation (see Supreme Court Decision 92Da1043, 1050, Sept. 1, 1992). The obligor, etc. may legitimate claim for

On the other hand, the debtor can determine the liquidation amount by giving his consent to the liquidation amount notified by the creditor, and if so, the consent can be implicitly and explicitly.

In addition, even in a case where a debtor has responded to a request for principal registration or a request for extradition of a security by an obligee without any objection to the notification of the execution of a provisional registration security right to the effect that there is no creditor's liquidation amount, in view of the debtor's age, intelligence, occupation, career, etc. at the time of the notice of liquidation, it may be recognized that the debtor has consented to the liquidation amount implicitly if it appears that the debtor had expressed his intention not to dispute over the liquidation amount at the time of the completion of the principal registration or delivery, in full view of the debtor's age, intelligence, occupation, career, etc.

2. According to the records, the non-party who is the person liable for the provisional registration of this case (hereinafter referred to as "the deceased") notifies the defendant, who is the person entitled to the provisional registration of this case, to sell the real estate of this case to the other party, and to repay the principal and interest of the claim. The defendant demanded the cancellation of the provisional registration of this case on January 9, 1997, but did not sell the real estate of this case to the other party. The defendant filed a lawsuit against the deceased on December 15, 1997 as the Jeju District Court No. 97Ka24725 against the defendant on the provisional registration of this case, and the defendant notified the defendant that the liquidation money of this case did not exist on May 19, 198 during the lawsuit, and the defendant did not know that the liquidation money of this case was collected from the plaintiff 1 to the third party on September 22, 1998 (the plaintiff did not dispute all the above notice and the litigation documents, and thus, it cannot be known that it was an objective judgment of the defendant 1's judgment.

However, in the preparatory brief on May 11, 2005 (record 436 pages), the defendant asserted that the deceased's confirmation of the above Jeju District Court Decision 97Da24725 without raising any objection to the liquidation of the defendant should be deemed to have been impliedly approved in the liquidation of the defendant. Thus, the court below should have deliberated on the defendant's assertion that it should have judged whether the deceased consented to the liquidation of the liquidation, but the court below accepted the plaintiffs' claim without making any determination as to the defendant's above assertion, and the judgment of the court below is erroneous and adversely affected the conclusion of the judgment due to the omission of judgment.

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)