(a) The criteria and time for assessing the value of secured real estate in the settlement procedure to be followed for the execution of transfer security right by the method of reversion settlement;

(b)the appropriateness of recognizing facts under any one of the different appraisal results.

C. Whether an appraisal opinion prepared by a person with professional knowledge and experience outside a lawsuit can be considered as the data for fact-finding (affirmative)

A. The value of secured real estate in a settlement procedure that should be conducted in order to enforce the right of transfer for security for real estate through the settlement of attribution is sufficient when it is assessed at the time of notifying the debtor that the secured real estate belongs to his/her own property finally and conclusively, and the same applies to cases where the declaration of intention is made in the process of a trial surrounding the secured real estate.

(b) If there are several different appraisal results with respect to the same matter, it is legitimate to recognize a fact under any one of them, which does not contravene the empirical or logical rules.

C. Even if the appraisal opinion is not necessarily withdrawn from the lawsuit by the method of appraiser examination, etc. under the Civil Procedure Act, and the document stating the appraisal opinion prepared by a person with professional knowledge and experience outside the lawsuit is submitted by means of documentary evidence, it cannot be said that the fact-finding court recognizes it as reasonable and reasonable, and considered it as materials for fact-finding.

A. Article 372 of the Civil Code . (B) of the Civil Procedure Act

B. Supreme Court Decision 88Meu14076 decided Jun. 27, 1989 (Gong1989, 1150) (Gong1990, 22) 88Meu12148 decided Nov. 14, 1989 (Gong1990, 1037) (Gong1990, 1037). Supreme Court Decision 65Da1660 decided Oct. 26, 1965 (Gong2111)

[Defendant-Appellee] Plaintiff 1 et al.

Defendant-Appellant Choi Jae-hon, Counsel for the defendant-appellant

Seoul High Court Decision 90Na29915 delivered on October 29, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

Even in the case of the so-called weak meaning of transfer for security, a creditor may own the secured real estate in addition to the method of disposing the secured real estate to a third party at an appropriate price and through liquidation and settlement procedures. According to the records, in the contract for transfer for security of this case, although there is a dispute between the parties about the secured amount and the value of the secured real estate, the execution of the secured real estate itself by the settlement of attribution has been agreed to allow the execution of the secured real estate. Thus, the court below's decision that the defendant can execute the right for transfer of this case by the method of settlement of attribution is just, and there is no error of law such as incomplete deliberation or misunderstanding of legal principles as to the transfer for security.

2. On the second ground for appeal

In a settlement procedure that requires the execution of the right to transfer to a real estate by way of the settlement of attribution, the value of the secured real estate is sufficient when it is assessed as of the time when the debtor notifies the intention that the secured real estate will be reverted to his/her own property finally, and it does not change even if the declaration of intention was made in the process of a trial surrounding the secured real estate.

Therefore, according to the above legal principle, the decision of the court below that assessed the value of the secured real estate of this case as of the time when the defendant declared his intention of attribution to the plaintiff is just and there is no reason to criticize the judgment of the court below on the ground of

3. On the third ground for appeal

According to the reasoning of the judgment below, as of June 15, 1983, the court below decided that as of June 15, 1983, the defendant, as a creditor, expressed his/her intention of settling accounts for the real estate for the repayment of the plaintiff's obligation, all of the defendant's secured claims amounting to KRW 237,881,529, the market price of the secured real estate is below 234,07,200, the defendant decided that it is unnecessary not to pay a separate settlement amount to the plaintiff by his/her intention of

However, in comparison with the relevant evidence, the court below recognized several errors, as pointed out in the theory of lawsuit, in recognizing the amount of the secured debt of the security for transfer in this case.

In other words, the court below acknowledged all of the loan repayment amount of KRW 114,542,397 ( principal of KRW 100,000,000, interest amount of KRW 14,542,397) to the non-party partnership company Incheon Industrial Bank of Korea, which the defendant subrogated, as the claim against the plaintiff. However, in full view of the evidence as stated in the evidence No. 1-1 and No. 2-1 of the evidence No. 2-1 of the judgment of the court below, the plaintiff and the defendant under the contract for the acquisition of the corporation of this case as to the non-party limited partnership company of this case, while the plaintiff and the defendant paid 10,000,000 to the non-party limited partnership company of this case, and later paid 10,000,000,000,000 after payment was made by the transferor, which is ultimately borne by the defendant. Thus, the defendant's repayment liability for interest on the loan amount is not ultimately equivalent to the defendant's debt to the non-party bank of this amount.

In addition, according to the evidence adopted by the court below, such as the statement in Eul evidence 2-3, the defendant's claim for the above subrogation amounting to 5,000,000 won is included in the defendant's claim against the plaintiff. However, according to the evidence adopted by the court below, the defendant's claim for the above subrogation amounting to 5,00,000 won is also included in the defendant's claim amount already recognized under Article 3-1 (a) of the reasoning of the judgment below.

Ultimately, the Defendant’s claim amount recognized by the lower court cannot be calculated in excess of 20,069,74 won, including 19,542,397 won (14,542,397 + 5,000,000) and damages for delay, 527,377 won (19,542,397 x 0.05 x 197/365).

On the other hand, the court below argued that the court below erred in adopting appraisal opinion that is most unfavorable to the plaintiff as evidence when recognizing the value of the mortgaged real estate in this case.

According to the reasoning of the judgment below, in assessing the value of the secured real estate in this case, the court below rejected that the result of each appraisal by Nonparty 1 and Nonparty 2 after the first remand of the party members was conducted at least five years and six months from the base point of time of the appraisal, and the current status of the real estate was changed, and the basis of the appraisal was ambiguous. The court below adopted the statement of the appraisal document (No. 19-2) prepared by Nonparty 3, a certified appraiser, a certified appraiser, as evidence on June 1983, around the time when the defendant expressed his intention of settling the accounts belonging to this case, and assessed the value of the real estate accordingly.

If there are different appraisal results concerning the same matter, if a fact is recognized under any one of them, it shall be lawful unless it violates the empirical and logical rules (see Supreme Court Decision 88Da12148, Nov. 14, 1989). In addition, even in cases where the appraisal opinion is not necessarily withdrawn from a lawsuit by means of interrogation, etc. of appraiser under the Civil Procedure Act and a document in which the appraisal opinion prepared by a person with professional knowledge and experience outside the lawsuit is submitted by means of documentary evidence, it cannot be said that the fact-finding court recognizes it as reasonable and trust and takes it as evidence for fact-finding (see Supreme Court Decision 65Da1660, Oct. 26, 1965). Reviewing the records, it is justifiable for the court below to adopt the appraisal report prepared by Nonparty 3 as materials for calculating the value of the above real estate, and there is no violation of the rules of evidence as pointed out by the theory of lawsuit.

Rather, according to the reasoning of the lower judgment, considering the specific value of the mortgaged real estate based on the written appraisal adopted by the lower court, the lower court seems to have erroneously recognized the scope of the mortgaged real estate and assessed its excessive value.

In other words, the court below acknowledged the fact that the defendant, in subparagraph 4 (A) of Article 4 of the reasoning of the judgment of the court below, on November 15, 1982, which was before the defendant expresses his intention of the settlement of accounts belonging to this case, 17 square meters (59.2 square meters in the form of transfer of ownership), among the real estate listed in subparagraph 4 of attached Table 2 of the judgment of the court below which was a secured real estate, sold to the non-party 4 (59.2 square meters in the form of transfer of ownership), and deemed that the amount equivalent to 26,850,00 won out of the price is appropriated for the payment of part of the amount of claims, and deducted the amount of the secured claim from the amount of the secured claim. Thus, in calculating the value of the secured real estate, the above sold portion from the time of the settlement of accounts belonging to this case was excluded from the scope of the secured real estate. However, the court below should have deducted the amount of the appraised value of the whole real estate from the amount of the secured real estate x.

Therefore, the court below erred in calculating the defendant's excessive amount of secured claims, as pointed out in theory. However, the court below calculated excessive amount of secured real estate value, while considering all these factors, the real estate value of this case is below 217,81,755 won (237,81,529 - 20,529 - 20,069) as the secured debt amount at the time of the settlement of attribution of this case (234,077,200 - 19,766,779). Thus, the court below erred in calculating the excessive amount of secured claims as the result of the original adjudication that the defendant who is the creditor did not need to pay the separate amount of secured claims. Accordingly, this error of the court below cannot be said to have affected the conclusion of the judgment, and this part of the appeal is without merit.

4. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)