1. Whether a provisional registration for the object of security for an obligation becomes effective automatically as a repayment of obligation;

2. Diversion of invalidated provisional registration;

1. Where a right to collateral security has been established on a real estate for the purpose of securing a claim, and a provisional registration has been made, this provisional registration is naturally invalidated on the repayment of a claim, since it is aimed at securing a claim at any time, even if the nature of a pre-sale agreement

2. In order to divert a provisional registration already invalidated, there is no third party with a new interest, until it is useful, and there is a new cause relationship consistent with the former registration between the parties.

Article 369 of the Civil Act

Supreme Court Decision 68Da2334 delivered on March 18, 1969 (Supreme Court Decision 5916 delivered on June 5, 196, Article 369 (1) 371 of the Civil Act) 74Da482 delivered on September 10, 1974 (Supreme Court Decision 108Da10812 delivered on September 10, 1974, Supreme Court Decision 223Da363 delivered on March 18, 196, Court Gazette 499, 8048 delivered on September 10, 1974

Plaintiff

Defendant 1 and one other

Seoul Central District Court (68 Ghana8332) in the first instance trial

The original judgment shall be revoked.

Defendant 2: (a) as to the real estate indicated in the attached list, Defendant 2: (b) as to the real estate indicated in the attached list on March 13, 1968; (c) as to the real estate indicated in the attached list, (d) as the receipt of the same registry office on March 13, 1968; (c) as to the same real estate indicated in the attached list, the same registry office was No. 7863; (d) as to the third real estate indicated in the attached list, the procedure for the cancellation of the registration of co-ownership transfer on the ground of sale on February 26, 1968; and (e) as to the above real estate indicated in the attached list, Defendant 1 was the receipt of the above registry office on March 13, 1968 as No. 7860 on the same day; (e) as to the third real estate indicated in the attached list, the procedure for the cancellation of the registration of co-ownership transfer on the ground of sale on October 27, 1967.

All the costs of lawsuit shall be borne by the defendant, etc.

The same shall apply to the order.

1. Judgment on the main defense of this case

The Defendants’ legal representative, which is based on the Plaintiff’s principal claim, was transferred by Nonparty 1 the right to collateral security, and thus, Nonparty 1’s main right to collateral security becomes null and void, and the Plaintiff’s main right to collateral security is also null and void, so the Plaintiff’s main right to collateral security is not entitled to bring a lawsuit. Therefore, the Defendant’s assertion that the above assertion is a matter to be dealt with on the merits of the lawsuit, and the Defendant’s main right to collateral security is groundless.

2. Judgment on the merits

(A) The following facts may be acknowledged in light of Gap evidence Nos. 2 and 3 (each copy of the register of the court below), and Gap evidence No. 4 (each of the records No. 2 and 3 (each of the records No. 2 and 1, non-party No. 2, non-party No. 1, and non-party No. 3), each protocol of suspect examination (each of the records No. 2, defendant No. 2, non-party No. 1, and non-party No. 3), the witness of the court below's testimony at the time of interrogation, part of the witness of the court below's testimony at the time of the defendant No. 1, and the whole purport of the pleading at the time of the oral argument, among the records No. 2 and non-party No. 2's testimony and the records No. 4 (each of the records No. 2 as to the non-party No. 2), which are acknowledged

1. The fact that the real estate recorded in the attached list (hereinafter this real estate) was owned by Nonparty 3.

② On October 27, 1967, Nonparty 3 borrowed gold KRW 1,500,000 from Defendant 1 and set up a first-class mortgage with the maximum amount of the claims on the real estate for the purpose of security on December 30, 1967 with the Defendant KRW 1,50,000 for the purpose of security on December 30, 1967, and made a provisional registration against the Defendant for the preservation of the right to claim ownership transfer due to the purchase and sale reservation.

③ Around December 20, 1967, Nonparty 3 borrowed 1,000,000 won from Defendant 2 through Nonparty 2, through Nonparty 2.

④ On January 17, 1968, Nonparty 3 fully repaid the above obligation to Defendant 1.

⑤ On February 16, 1968, Nonparty 3 created a mortgage No. 2 with the maximum amount of KRW 3,000,000 on this case’s real estate in order to secure Nonparty 1’s existing obligation KRW 1,750,000 (the Defendant asserted that the establishment registration of a mortgage on this case’s real estate is null and void, but the party members recognized this as above based on the above evidence).

⑥ On February 27, 1968, Nonparty 3 accepted the transfer of mortgage to Nonparty 1’s mortgage to the Plaintiff as collateral for KRW 1,200,000 borrowed from the Plaintiff via Nonparty 1, and the Plaintiff became the mortgagee two times after completing the transfer registration of mortgage.

7. On March 13, 1968, Defendant 2 registered the provisional registration of Defendant 1 under the above paragraph (1) with the consent of Defendant 1 and Nonparty 3 as ordered, and on that day, Defendant 2 completed the registration of ownership transfer of the main real estate from Defendant 1 and completed the registration of ownership transfer of the main real estate from Defendant 2, the Plaintiff’s right to collateral security was cancelled ex officio.

(B) Although the provisional registration of Defendant 1 under the above Paragraph (1) was invalidated due to the extinguishment of a claim, the Plaintiff’s legal representative made the principal registration as referred to in the above Paragraph (7) by using it, and made the registration of transfer to Defendant 2 and made the Plaintiff cancel the Plaintiff’s principal right to collateral security. Accordingly, the Plaintiff’s legal representative asserted that this should be cancelled as the registration of invalidity of cause

① The establishment of a mortgage on real estate for the purpose of securing a claim, while making a provisional registration on the preservation of a claim based on a pre-sale agreement, can be seen as having many transactions. In such a case, even if the nature of a pre-sale agreement is included in the provisional registration, the purpose of securing a claim is to ensure a claim, and thus, the provisional registration of Defendant 1, as seen above, should be considered to be null and void as a matter of course by the repayment of the claim. As seen earlier, the provisional registration of Defendant 1, as seen above, is solely for securing a claim of the same Defendant, and the provisional registration is deemed to have become null and void

② In order to use provisional registration already invalidated, first, there should be no third party who created a new interest until the first useful time (the third party becomes unfairly deprived of his right) and second, there should be a new cause relationship consistent with the former registration between the parties. In this case, as seen above, the Plaintiff created a second mortgage on February 27, 1968, prior to the time when Defendant 1’s provisional registration was used ( March 13, 1968), which had already been invalidated on the same real estate, and thus, it cannot be useful for Defendant 1 and Defendant 2, etc. to use the provisional registration already invalidated. The Plaintiff’s claim as ordered by the court for restoration after the provisional registration was invalidated on the basis of the utilization of the above provisional registration is unnecessary to determine whether there is a real estate acquired by Nonparty 3 as a substitute payment and the ownership transfer registration by Defendant 2 cannot be deprived of the Plaintiff’s right only due to the limitation of real right).

3. Therefore, the plaintiff's claim on the principal lawsuit is reasonable and acceptable, and the original judgment which differs from this conclusion is unfair, and the plaintiff's claim on the principal lawsuit is justified, and it is so decided as per Disposition by applying Articles 96 and 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Yekpo-shot (Presiding Judge)