A request for cancellation of transfer registration made as a security for the gambling obligation (negative)

Article 746 of the Civil Act, along with Article 103 of the Civil Act, provides that a person who commits an act which has no social validity and the basic concept of private law, expresses the law that the restoration of the property cannot be avoided by asserting the invalidation of his own illegal act regardless of its form, and does not limit only the request for return of unjust enrichment. Thus, it is not permissible for a person who provided benefits for illegal cause to claim that the act of cause is null and void, and as a result, a claim for the cancellation of ownership transfer registration based on ownership cannot be allowed because the person who provided benefits for illegal cause is asserting that the ownership of the provided goods is against himself/herself. Thus, it is not allowed to request for

Articles 746 and 103 of the Civil Act

Supreme Court Decision 79Da483 Delivered on November 13, 1979

[Plaintiff-Appellant] Park Jong-chul, Counsel for plaintiff-appellant

Defendant 2, Counsel for the defendant-appellant

Daegu High Court Decision 87Na668 delivered on January 26, 1989

The judgment below is reversed, and the case is remanded to the Daegu High Court.

According to the reasoning of the judgment of the court below, it is reasonable to view that the plaintiff borrowed 4 million won as gambling funds from the defendant from June 10, 1981 to the 18th day of the same month, and made a provisional registration of the establishment of a neighboring mortgage and the preservation of the right to claim the transfer of ownership on the real estate on November 27, 1982, but again recognized that the registration of transfer of ownership was made for the purpose of securing the above obligation, and its legal relation should be a transfer of property within a weak meaning necessary for realization and settlement between the parties. Since the payment of property is not a final and subordinate, in order to achieve the original purpose of the payment, it is not a benefit under Article 746 of the above Civil Act, since the establishment of a security right, etc., for which the recipient should again assert the legal argument, such as the exercise of the right to claim the transfer of ownership, should be excluded from the application of the above provision, and thus, the defendant is obliged to return each of the above profits acquired by the plaintiff without any justifiable reason for return.

However, Article 746 of the Civil Act provides that when a person pays property for an illegal cause, he/she shall not demand the return of the benefit thereof, along with the provision of Article 103 of the Civil Act, and that a person who commits an act which is socially unreasonable as a basic concept of the private law expresses his/her intent to seek the invalidation of a tort regardless of its form, and thus, shall not only limit the claim for return of unjust enrichment. Therefore, it is not a provision that limits only the claim for return of unjust enrichment. Accordingly, the party who provided the benefit for an illegal cause shall not be allowed to claim the invalidity of the act and claim the return of the benefit based on ownership on the ground that the person who provided the benefit for the illegal cause is his/her own ownership (Article 79Da483, Nov. 13, 197

Therefore, even in the case of this case, the claim for cancellation of ownership transfer registration that the plaintiff transferred to the meaning of transfer for security by asserting that the gambling obligation does not exist in an unlawful invalidation is not allowed by the application of Article 746 of the Civil Act.

The original adjudication shall not be reversed as it goes against the above precedents and shall not be reversed. The appeal to this point is with merit. The judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Kim Yong-sung (Presiding Justice)