[1] In a case where an obligor has registered a building permit of a building newly constructed by his own cost and effort to secure an obligation under the name of the obligee, whether this constitutes an agreement on the creation of a security right to provide a completed building as a security for transfer (affirmative), and in a case where the obligation under security is delayed, if the obligor’s delay in the performance of the obligation under security right, whether the obligee who completed the registration of ownership preservation for the completed building may demand against the obligor or the third party who occupied the obligor (affirmative)

[2] In a case where the obligor agreed to set up a security right to provide a building to be completed by means of transfer in the name of the obligee under the name of the building permit to be newly constructed by his own cost and effort for the security of the obligation, but the obligor agreed to dispose of it to be appropriated for the repayment of the obligation with the proceeds therefrom, but the obligor’s disposal of the newly constructed building after the lapse or rescission of the appropriation agreement for the repayment of the obligation became effective, whether the obligee may make a claim against the obligor or the third party for the explanation of

[1] If an obligor under the name of the obligee the title of the building permit to be newly constructed by his own expense and effort for the security of obligation, it is an agreement on the creation of a security right to provide the completed building as security for transfer. The obligee who has completed the registration of ownership preservation in one’s own name as to the completed building may make a claim against a third party, such as a housing lessee, etc., for whom the obligor or the obligor has lawfully occupied the building by exercising a security right, if the obligor is found to fall into delay of performance.

[2] In the event that an obligor agreed to set up a security right to provide a building to be completed by using the name of the obligee in the name of the building permit to be newly constructed by his own cost and effort for securing the obligation, the obligor has made an agreement to dispose of the new building at another building and appropriate it for the repayment of the obligation with the proceeds therefrom. If the disposal of the newly constructed building was conducted pursuant to such agreement, the obligee’s security right to the newly constructed building is deemed to have already been extinguished or may not be deemed to have renounced the claim for explanation against the obligor or the third party. However, it is natural that the obligee may make a claim for explanation against the obligor or the third party, if the agreement is invalidated or rescinded before

[1] Article 372 of the Civil Code / [Security for Transfer and Provisional Registration for Security] Article 3 of the Housing Lease Protection Act / [2] Articles 105, 372 (Security for Transfer and Provisional Registration for Security) and 568 of the Civil Code

[1] [2] Supreme Court Decision 200Da47682 decided Jan. 5, 2001 (Gong2001Sang, 427) / [1] Supreme Court Decision 91Da21770 decided Nov. 8, 1991 (Gong1992, 75) Supreme Court Decision 97Da8601 decided May 30, 1997 (Gong1997Ha, 2021), Supreme Court Decision 200Da48517, 48524, 48531 decided Mar. 13, 200 (Gong201Sang, 871) / [2] Supreme Court Decision 98Da14818, 14825 decided Dec. 24, 199; Supreme Court Decision 2008Da96825 decided Jun. 29, 209)

Plaintiff (Law Firm Dae-Gyeong, Attorneys Shin Jong-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Attorney Park Young-young, Counsel for the defendant-appellant)

Daegu District Court Decision 2000Na21596 delivered on June 20, 2001

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. On the first ground for appeal

If a debtor under his/her own name and effort to secure debts under the name of the obligee, a security right to provide a building to be completed as security for transfer is established (see, e.g., Supreme Court Decisions 97Da8601, May 30, 1997; 200Da48517, 48524, 48531, Mar. 13, 2001). A creditor who completed registration of initial ownership in his/her own name on a completed building may file a claim for the establishment of a new building to exercise the right to dispose of the real estate acquired by the obligor or the lessee of the newly constructed building, as part of realization procedure to exercise the right to dispose of the real estate acquired by the obligor under the security contract (see, e.g., Supreme Court Decision 91Da2170, Nov. 8, 1991; 209Da48970, Jan. 24, 2001).

The court below held that the non-party 1 and the plaintiff agreed to register multi-household houses constructed on the land at the time of the sales contract for the land of this case in order to secure the payment of the purchase price, and that the non-party 1, the purchaser of the apartment houses of this case, agree to preferentially pay the purchase price as the purchase price, and that the non-party 1, the purchaser of the apartment houses of this case, borrowed the apartment houses of this case from other persons unless the purchase price is fully paid until June 30, 1993, and that the non-party 2, who succeeded to the status of the non-party 1 and the non-party 1, did not pay the full purchase price of the land of this case until June 30, 193, the court below did not err in the misapprehension of legal principles as to the non-party 2's right to seek a security right to purchase multi-household houses of this case, or in the misapprehension of legal principles as to the non-party 1, the non-party 1 and the non-party 2's right to purchase of this case.

This part of the grounds of appeal cannot be accepted.

2. On the second ground for appeal

The Defendants asserted that there was a new agreement between the Plaintiff and Nonparty 2 on the exercise of the security right to dispose of the instant multi-household housing after completion of the instant multi-household housing and to pay the purchase price for the instant housing site, or that the Plaintiff allowed Nonparty 2’s lease of the instant multi-household housing. However, the lower court did not hold a trial on this point. However, this assertion is a new assertion that the Plaintiff did not reach a judgment in the lower court, and it cannot be deemed a legitimate ground for appeal, as it is a new argument that the Plaintiff did not pay for the first time in the final appeal. Moreover, the circumstance that the Defendants are internal, is insufficient to deem that the Plaintiff’s disposal of the instant multi-household housing was acceptable, regardless of whether the agreement between the Plaintiff and Nonparty 2 granted the right to dispose of the instant multi-household housing for the exercise of the

This part of the grounds of appeal cannot be accepted.

3. On the third ground for appeal

The Defendants asserted that, if Nonparty 1 or Nonparty 2 sold or leased the instant house on or before June 30, 1993, it was the exercise of the right to collateral under the agreement, the Plaintiff’s security right is extinguished, and the Plaintiff’s request for explanation of the instant house cannot be made to exercise the security right. Thus, the lower court did not err by failing to examine and determine whether the instant agreement was effective at the time of initial sale of the instant house and at that time. However, the lower court’s assertion also did not constitute a legitimate ground of appeal as it was a new assertion that was only in the final appeal, and even according to the record, the record does not lead to a legitimate ground of appeal, and even if Nonparty 3, who had built the instant multi-household house on or before October 10, 1994, after the completion of the instant multi-household house, moved into the instant house as a deposit for construction payment to secure the construction price of KRW 26 million to Nonparty 2, and there was no reason to acknowledge that the Defendants’ disposal right had been available prior to June 3, 1993.

This part of the grounds of appeal cannot be accepted.

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

Justices Lee Jin-hun (Presiding Justice)