Obligations of the secured party at the time of disposal of secured articles

A creditor who acquired the ownership of real estate in order to secure a claim has the right to dispose of the secured real estate to recover the claim if the debtor fails to perform his/her obligation, but the disposal of the secured real estate should be appropriate according to the market price, which is a realization method to appropriate for the repayment of the claim. Therefore, the creditor is obligated to dispose of the secured real estate at the market price after sufficiently ascertaining the market price through an appraisal institution or a real estate publisher, etc. before disposing of the secured real estate.

Article 750 of the Civil Act

Supreme Court Decision 73Da38 delivered on June 5, 1973 (Supreme Court Decision 10455 delivered on June 5, 1973, Supreme Court Decision 21Du51 delivered on June 21, 200, Supreme Court Decision 750(194), No. 469 delivered on June 5, 197

Plaintiff

Defendant

Seoul Central District Court (78Gahap2388) in the first instance trial

1. The defendant shall pay to the plaintiff 10,531,137 won with an annual interest rate of 5% from June 25, 1978 to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The total cost of a lawsuit shall be five minutes, which shall be borne by the plaintiff, and the remainder by the defendant.

4. Provisional execution may be effected only under the above paragraph (1).

The plaintiff shall change the claim in exchange for a claim at the trial, and the defendant shall pay to the plaintiff an amount of 10,536,424 won and the amount equivalent to the rate of 5 percent per annum from the following day of service to the date of full payment.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution (the purport of the claim prior to the alteration: the defendant shall execute the procedure for the cancellation of the provisional registration to preserve the right to claim ownership transfer due to the sale contract of the same date as the receipt of the Seodaemun District Court Registry of Seodaemun District Court on January 24, 1978 (No. 2379) and the registration of ownership transfer due to the sale on June 23, 197 and the receipt of the same registry office on June 23, 197 (No. 21841).

The original judgment shall be revoked.

The defendant shall implement each procedure of cancellation registration, such as the purport of the claim before the above modification.

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

1. The real estate listed in the attached list (hereinafter referred to as the "real estate") was originally owned by the plaintiff. The plaintiff borrowed 4,50,000 won interest from the defendant on June 23, 197 from the defendant for three months with the maturity of 5% per month for the above loan and received the above loan repayment obligation, which is the security obligation to return the loan, and the real estate was registered under the name of the defendant for the purpose of preserving the right to claim transfer of ownership due to the purchase and sale reservation of the above date. The defendant applied for the settlement settlement before the above court as the respondent, and the defendant received 5,00,000 won from the plaintiff until December 31, 197, and at the same time implement the provisional registration procedure under the name of the defendant for the above real estate.

In the event that the plaintiff fails to implement this, the defendant shall settle that the principal registration procedure based on the above provisional registration shall be implemented for the purpose of security, and thereafter, the defendant shall not execute the above provisional registration, and the defendant shall sell the real estate to the non-party 1 (the co-defendant in the first instance court) on January 17, 197, the real estate under the name of the non-party 1 (the co-defendant in the second instance court), and the fact that the plaintiff completed the registration of ownership transfer under the above provisional registration on the ground of the above provisional registration, which was based on the above provisional registration's receipt of the registration office No. 2379, Jan. 24, 1978, which was made on June 23, 1977.

2. First, we judge the plaintiff's claim for damages due to the plaintiff's tort.

In full view of the statements by the witness non-party 2 and the purport of the pleading as a result of the market price appraisal by the non-party 3 at the trial court, the plaintiff did not repay to the defendant an amount of 5,000,000 won until December 13, 1977, which is the due date set forth in the above protocol of conciliation, and did not repay to the defendant more than the due date set forth above, but the defendant refused to accept the above amount on the ground that the defendant did not pay the above amount, and the plaintiff deposited an amount of 5,00,000 won to the public official of the Seoul Civil District Court on January 24, 1978, the plaintiff deposited an amount of 5,00,000 won under the above protocol of conciliation with the public official of the Seoul Civil Court. On the 17th of the same month, the defendant can be recognized that the market price of the above real estate was 15,671,000 won at the time of disposal to the non-party 1, and there is no belief 2's belief 197.7.

However, in case where a protocol of compromise was established with the purport that a creditor would make a provisional registration on real estate owned by the debtor in the name of the creditor for the purpose of securing the debtor's obligation and make a principal registration on the basis of provisional registration if the creditor fails to repay his obligation at the due date, the creditor shall have the right to dispose of the secured real estate in order to recover the obligation, but such disposal shall be appropriate according to the market price as the method of realization for the repayment of the obligation. Thus, the creditor shall have the obligation to dispose of the secured real estate prior to the disposal of the realization of the secured real estate by fully ascertaining the market price and then dispose of it at the market price. According to the above facts, the defendant shall be liable to dispose of the secured real estate to the non-party without taking necessary measures such as summer in violation of his duty, and then dispose of the real estate at least KRW 15,671,000,000 at the market price at the time of its disposal, so the defendant's sale of the real estate at least 70,000 won,00 won after deducting the sale price of the above real estate at least 700.

3. The following determination is made on the plaintiff's claim for return of unjust enrichment.

As seen above, the defendant has a duty to pay to the plaintiff the above 5,00,000 won under the above protocol of settlement if he had completed the registration of ownership transfer on the basis of a provisional registration as to the above real estate and the defendant has received the full amount of the above 7,20,000 won to the non-party. On the other hand, the defendant has a duty to return to the plaintiff the above 5,000,000 won as well as the amount remaining after being appropriated for the repayment of the principal and interest of all the execution expenses out of the amount acquired by selling the real estate. The defendant's claim to be recovered as the exercise of security right has a duty to return the above 30,000 won as well as the interest on the above 14,1977. (The above 5,00,000,000 won as to the above 30,000 won as the principal and interest on the 30,500,000 won per annum or 25,05,000 won per annum.

4. Determination as to the defense of offset

Even after the defendant acquired the ownership of the real estate in this case by the non-party 1, the plaintiff illegally occupied the real estate in this case and thus the non-party has the right to claim damages equivalent to the rent. Thus, it is argued that it offsets the non-party's damages claim amount against the equivalent amount, but even according to the defendant's own assertion itself, there is no proof of the defendant's right to claim damages against the non-party's right to claim damages. Therefore

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of 8,471,00 won and the amount of 2,060,137 won and the amount of 10,531,137 won and the amount of 10,531,137 won and the amount of 5% per annum from June 25, 1978 to the date of full payment. Thus, the plaintiff's claim that has been changed in exchange in the court room is justified within the above scope of recognition, and the remaining claims are dismissed, and it is so decided as per Disposition by applying Article 96, 89, and 92 of the Civil Procedure Act with respect to the total cost of lawsuit and Article 199 of the provisional execution declaration.

Judge Lee Young-soo (Presiding Judge)