A. Whether a mortgagee can seek delivery on the basis of a direct ownership against a third party who legally acquired possession of the secured real estate from the obligor, if the obligor had delayed performance of the secured obligation due to the obligor's default (negative)

B. The case reversing the judgment of the court below on the ground that there was an error of law in violation of the principle of illegality and pleading in the light of the reason and the principle of pleading, since the plaintiff merely takes ownership as the source of claim, but does not take the exercise of security right as the source of claim.

A. A mortgagee who has completed a registration of transfer of ownership for the purpose of collateral security may seek delivery of the secured real estate as part of the realization procedure to exercise the right to dispose of the secured real estate acquired by the collateral contract if the debtor has come to a delay in the performance of the secured obligation due to the lapse of the period for payment. In other words, in a case where the debtor is entitled to seek delivery of the secured real estate as part of the realization procedure to exercise the right to dispose of the secured real estate acquired by the collateral contract, and a third party is legally occupying the secured real estate

B. The case reversing the judgment of the court below on the ground that the plaintiff only takes ownership as the source of the claim, but does not take the exercise of the security right as the source of the claim, and there was an error of law in violation of the principle of pleading and the principle of pleading.

A. Article 372 (Transfer for Security) of the Civil Act / B. Articles 188 and 193(2) of the Civil Procedure Act

A. Supreme Court Decision 87Meu2555 decided Nov. 22, 1988 (Gong1989,21) (Gong1989,21) 89Meu1884 decided Apr. 24, 1990 (Gong1990,1135) 91Da13830 decided Aug. 13, 1991 (Gong191,2348)

Park Jong-hee

Attorney Lee Jae-sung, Counsel for the defendant-appellant

Seoul High Court Decision 90Na14777 delivered on June 5, 1991

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

1. The grounds of appeal Nos. 1 and 2 are examined together.

According to the reasoning of the judgment below, the court below held that the registration of preservation of ownership of the real estate in the name of Kim Jae-jin was completed in the name of the plaintiff, and that the defendant has a duty to express the above real estate to the plaintiff as the owner of the above real estate unless there is any dispute between the parties as to the fact that the defendant currently occupies the above real estate, since there is no assertion or proof as to the possessory right holder, and on the other hand, the registration of preservation of ownership in the name of Kim Jae-jin as to the above real estate in the name of the defendant's abuse of rights or litigation trust was sold to the non-party Kim Jong-sik as to the land of this case. In order to secure the claim for the remaining purchase price of the real estate in the name of the non-party Kim Jong-jin who acquired the above real estate in the name of the above site, the registration of the plaintiff's name as to the above real estate was entrusted in the name of the above real estate in the name of the defendant Kim Jong-jin in order to secure the right to the sale price of the real estate in the above site.

However, in a civil suit, it is reasonable to conclude that the plaintiff's exercise of the right to know, which is the subject matter of the lawsuit of this case, can not be employed as the basis of the judgment unless the parties assert it in the lawsuit in question due to the principal facts.

A mortgagee who has completed a registration of ownership transfer for the security of a claim shall be entitled to seek the delivery of the secured real estate as part of the realization procedure in order to exercise the right to dispose of the secured real estate acquired through a security contract if the debtor's repayment period has expired and the debtor has delayed the performance of the secured obligation. In other words, a third party may seek the delivery of the secured real estate as part of the execution of the security right, and even if the third party has lawfully possessed the secured real estate from the debtor, he may not seek the delivery of the secured real estate, or may not seek the delivery based on the direct ownership. According to the facts established by the court below, the real estate in this case is provided as security of the secured claim for the land remaining after the above Kim Tae, who is the debtor, and the defendant was apportioned to KRW 13,00,000 from the above Kim Tae, who is the actual security right, and in this case, the plaintiff is the title trustee, which is the actual security right, and therefore, the judgment of the court may change depending on whether the plaintiff claims the ownership or the security right as a claim.

Therefore, the judgment of the court below is erroneous in violation of the principle of pleading by rendering a judgment on the premise that the source of the claim in this case is the exercise of the security right, by citing two or more claims in this case. Such errors affected the conclusion of the judgment, which points out this error.

2. The third ground of appeal is examined.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the above Kim Tae-tae, the purchaser of the site of this case, paid the down payment and the intermediate payment in his name, while the non-party Kim Jong-jin, agreed to the effect that the multi-household house should be sold in the name of the purchaser after the completion of multi-household house and the transfer of ownership is directly made in the name of the purchaser, and the above parties should enter into a contract for the third party for the seller who will purchase the above multi-household house from the above Kim Tae-tae, or the above Kim Tae-tae should be deemed to have granted the right to sell the apartment house on behalf of the above non-party Kim Tae-jin, who will be the owner of the above multi-household house, without reliance on the defendant's argument that the above Kim Tae-tae should be the owner of the above multi-household house, and there is no other evidence to acknowledge this. In light of the records, the judgment of the court below is justified, and there is no violation of law such as theory of lawsuit.

3. The fourth ground of appeal is examined.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the secured obligation was fully repaid by reducing the registration of transfer of ownership in the future of the above 302 multi-household 302 other than the above Kim Tae's repayment and deposit money, since there is no evidence to recognize that the above 302 registration in the future of the above 302 is for the purpose of attribution of ownership in the future of the above stuff, and there is no evidence to prove that the ownership will be reverted to the above stuff. In light of the records, the judgment of the court below of the Health Institute is just and it is not erroneous in the misapprehension of legal principles as to abuse of rights such as theory of lawsuit or incomplete deliberation

4. Therefore, the judgment of the court below is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)