Plaintiff (Attorney Park Im-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Han, Attorneys Kim Jong-soo et al., Counsel for defendant-appellant)

October 13, 2005

Suwon District Court Decision 2003Da80341 Delivered on April 11, 2005

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 57,747,540 won with 5% interest per annum from March 10, 2002 to December 22, 2003, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the entries in Gap 1 through 9 (including each number), and the whole purport of the pleadings, and there is no counter-proof.

A. The Plaintiff was determined to temporarily dispose of the instant real estate as the right to claim for the transfer registration of ownership on the ground that the Plaintiff purchased the instant real estate from the Defendant, who is one’s own punishment, the ownership transfer of which was 390 square meters prior to 461 square meters prior to 461 square meters prior to 548 square meters prior to 541-1 square meters prior to 541,381 square meters prior to 543 square meters prior to the same Ri, 1,078 square meters prior to 543 square meters prior to the same Ri, 542 prior to 542 square meters prior to the same Ri, and 1,736 square meters prior to 469 square meters prior to the same Ri (hereinafter “instant real estate”).

B. On September 8, 2001, the Plaintiff asserted that he purchased the instant real estate from the Defendant by filing a lawsuit claiming ownership transfer registration with the Suwon District Court (Case Number omitted). On November 17, 2001, the Plaintiff added the preliminary purport of the claim that he acquired the instant real estate by prescription, which was sentenced to the judgment against the Plaintiff on May 9, 2002.

C. However, on June 18, 2003, the appellate court (case number omitted) rendered a judgment in favor of the plaintiff on February 25, 1995 that the plaintiff acquired the real estate of this case on February 25, 1995 upon the plaintiff's conjunctive claim. On November 13, 2003, the above judgment became final and conclusive in the final appeal, and the defendant filed a lawsuit for retrial under (case number omitted), but lost on September 3, 2004.

D. Meanwhile, in order to secure the present or future obligation to an agricultural cooperative (name omitted) (hereinafter “agricultural cooperative”) for the agricultural cooperative (name omitted), the Defendant registered the creation of each right to collateral (name omitted) with respect to the real estate of this case with the maximum debt amount of 15,00,000 won on September 14, 1990 and the maximum debt amount of 60,000,000 won on January 29, 1996.

E. On February 18, 1998, the Defendant entered into an agreement on the self-reliance deposit loan of KRW 40,000,000 with an agricultural cooperative on February 18, 199, the transaction period of KRW 18,200, the transaction period of KRW 40,000, the transaction period of KRW 160,000, the interest rate of KRW 16% per annum, and the delay penalty rate of KRW 22% per annum with the agricultural cooperative (title omitted)

F. However, if the Defendant did not repay the principal and interest of the above loan even after February 19, 199, an agricultural cooperative (title omitted) applied for voluntary auction of the instant real estate under the right to collateral security (case number omitted) around November 29, 200 and January 29, 1996, with the status of (case number omitted) around September 14, 1990, and applied for voluntary auction of the instant real estate under the right to collateral security (mortgage number omitted). On September 26, 2001, the Defendant was awarded a successful bid of KRW 90,110,000 to the Nonparty who is a birth of the original and the Defendant.

G. On October 4, 2001, the Plaintiff filed an immediate appeal against the decision of permission for successful bid on the ground that he had not been notified of the auction date from the court of auction. On October 26, 2001, the Plaintiff deposited 52,247,540 won as a deposit account with agricultural cooperatives (title omitted). On the same day, the Plaintiff filed a lawsuit claiming for cancellation of the registration of creation of mortgage against the Defendant against the agricultural cooperatives (title omitted) by asserting that he purchased the instant real estate from the Defendant.

H. On February 20, 200, the Plaintiff paid 5,500,000 won, other than the above deposit, to the agricultural cooperative (title omitted), and the conciliation was concluded after the agricultural cooperative additionally paid 5,50,000 won (title omitted) in addition to the above deposit, and the Plaintiff additionally paid 5,500,000 won to the agricultural cooperative (title omitted) on March 9, 2002, and (title omitted) the agricultural cooperative withdrawn the application for voluntary auction of the instant real estate on March 22, 2002, and around that time, the registration of establishment was also cancelled.

2. Judgment on the main claim

A. The parties' assertion

The plaintiff asserts that the defendant is liable to pay the above money and the damages for delay from March 10, 2002, which is the day following the date of final subrogation, to the plaintiff, because the third party who has a right to claim the ownership transfer registration of the real estate of this case was paid the payment of KRW 57,747,540 on behalf of the defendant (title omitted) to the agricultural cooperative (=52,247,540 + additional payment of KRW 5,500).

In regard to this, the defendant asserts that in the case of prescriptive acquisition, the physical burden, such as collateral on real estate, which is subject to acquisition, is exceeded to the acquisitor, and that the repayment by the plaintiff to the agricultural cooperative (title omitted) is not by subrogation of the defendant, but by discharge of his/her obligation, the defendant has no obligation to pay the above repayment to the

(b) Markets:

(1) In the case of a seller under a sales contract, even if the purchaser of the real estate becomes unable to acquire the ownership of the real estate due to the auction of the real estate in the voluntary auction procedure conducted prior to the claim for ownership transfer registration due to the completion of the prescription period on the ground of the completion of the prescription period, deeming that the original owner does not bear any responsibility for the purchaser of the real estate (see Supreme Court Decision 94Da43825, Dec. 10, 1996) [In the case of a seller under a sales contract, if it is impossible to transfer the ownership of a third party due to the auction of the object of sale after the sales contract, the buyer is liable for damages to the buyer based on the sales contract, but the original owner of the prescription acquisition is not liable for the buyer even if the ownership is lost due to the loan and the establishment of the right to claim ownership transfer registration conducted prior to the exercise of the right by the purchaser of the prescription period, this is different from the position of the buyer and the right to claim the ownership transfer registration of the purchaser under a sales contract];

Therefore, if a prescription acquisitor created a collateral and extended a loan prior to the exercise of the right such as a claim for the right upon the completion of the prescription period, it is difficult to deem that the prescription acquisitor paid a loan to prevent the successful bid of the real estate in the discretionary auction procedure based on the right to collateral security merely because it is a performance by the prescription acquisitor to acquire the ownership of the real estate, and that it is a repayment by the original owner on behalf of the Defendant, who is the original owner. Since the original owner is in a position to lose ownership due to the expiration of prescription period, there is no benefit in preventing the original owner from repaying the principal and interest of the loan. Therefore, in such a case, it is reasonable to deem that the amount equivalent to the amount paid by the prescription acquisitor cannot be claimed to the original owner (if the original owner created a collateral or obtained a loan after the expiration of prescription period, it can be deemed that the original owner is liable for damages caused by tort, and in such cases, there is a benefit to the original owner to repay the loan).

As seen in the instant case, the prescriptive acquisition of the instant real estate was completed on February 25, 1995, and the Plaintiff, on November 17, 2001, exercised the right upon completion of the prescriptive acquisition by adding a preliminary claim for the registration of ownership transfer on the ground of the completion of the prescriptive acquisition on November 17, 2001 (the same shall apply to the case where the Plaintiff, on the ground that he purchased the instant real estate from the Defendant, was subject to a decision to prohibit the provisional disposal of the instant real estate on August 20, 201). The right to collateral security on the instant real estate was respectively established on September 14, 1990 and January 29, 196, and the loans based on the said collateral were executed on February 18, 198.

According to the above facts, since the right to collateral security and loan on the real estate of this case were executed prior to the plaintiff's exercise of his right, the payment of KRW 57,747,540 to the agricultural cooperative (title omitted) for the purpose of preventing the successful bid of the real estate of this case in the voluntary auction procedure for the real estate of this case is for the benefit of the plaintiff's own interest. Thus, since there was no other creditor except the agricultural cooperative (title omitted), the remainder excluding KRW 90,110,00 of the successful bid price at KRW 90,326,778 (name omitted) of the total amount of claims of the agricultural cooperative (name omitted) at KRW 61,326,778 (No. 31 of evidence 9-1 of the title omitted) was paid to the defendant who is the original owner, the plaintiff is not entitled to seek the amount equivalent to the above amount from the defendant in the voluntary auction procedure.

(2) On the other hand, even if the acquisition by prescription is completed before the completion of the registration of ownership transfer, the prescriptive acquisitor is not a complete real right, but can only acquire the right to claim the registration of ownership transfer of the nature of the claim. Thus, if a third party acquires the right to collateral from the original owner during the above period, the prescriptive acquisitor cannot oppose the right to collateral security (see Supreme Court Decision 90Nu5375 delivered on February 26, 191). In other words, even if the prescriptive acquisitor has completed the registration of ownership transfer on the real estate due to the completion of prescription, the right to collateral created before the registration of ownership transfer remains in the real estate after the completion of the acquisition by prescription. Therefore, it is reasonable to deem that the prescriptive acquisitor acquires the ownership of the real estate within the limited scope where the right to collateral security is established (where the original owner establishes the right to collateral security with the knowledge of the completion of the acquisition by prescription,

Therefore, in this case, the cancellation of the right to collateral security established on the real estate by the purchaser of the prescription is the sole repayment of the debt for his own interest of the purchaser of the prescription, and it cannot be said that the repayment is made on behalf of the original owner.

With respect to this case, as seen above, the acquisition by prescription was completed on February 25, 1995, and thereafter, the establishment registration of a neighboring mortgage was completed on January 29, 1996 with a maximum debt amount of KRW 60,000,000, and the loan based on the above right to collateral security was conducted on February 18, 1998. Accordingly, it is reasonable to deem that the plaintiff acquired the real estate under the condition that the above right to collateral security was effective. Accordingly, it is reasonable to deem that the plaintiff paid the plaintiff's repayment for the establishment of the above right to collateral security (the application for voluntary auction of the real estate was filed with the right to collateral on September 14, 199, other than the above right to collateral security, but the claim for voluntary auction was within the maximum debt amount of the above right to collateral security as of January 29, 1996, and thus, the plaintiff's claim in this case remains effective on January 29, 1996).

3. Determination on the conjunctive claim

A. The plaintiff's assertion

The plaintiff asserts that the plaintiff is liable to pay the amount of 57,747,540 won as unjust enrichment return and the delay damages for the amount of 57,747,540 won by subrogation of the defendant's (name omitted) to the agricultural cooperative, and the defendant gains profit from the plaintiff's contribution without any legal ground and thereby causes damages to the plaintiff.

(b) Markets:

As seen above, the plaintiff discharged his obligation for his own interest, and the defendant did not have any interest in paying the principal and interest of loan because of the position that he would lose ownership due to the completion of the statute of limitations. Thus, the defendant cannot be deemed to have obtained unjust profits due to the plaintiff's repayment [the real estate of this case was awarded in KRW 90,110,00, and if the auction procedure is in progress, the defendant would rather have received the remainder of the successful bid price less the amount of claims of agricultural cooperatives (name omitted). Accordingly, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for all reasons, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Lee Dong-ho (Presiding Judge)