In violation of Articles 607 and 608 of the Civil Act, the validity of the registration of transfer of ownership

Even if the promise to return the substitute is in violation of Article 607 and Article 608 of the Civil Code and the validity of the promise to return the substitute is not recognized, the effect of the transfer for security should be recognized.

Articles 607 and 608 of the Civil Act

Supreme Court Decision 67Da61 delivered on March 28, 1967 (Supreme Court Decision 15Nu251 delivered on April 15, 196, Supreme Court Decision 68Da762,763 delivered on June 28, 1968 (Supreme Court Decision 16Du196 delivered on June 28, 196, Supreme Court Decision 607(35) of the Civil Act)

Plaintiff

Defendant 1 and one other

Seoul Central District Court (63Ga3097) in the first instance trial

This appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

On September 18, 1962, Defendant 1 requested that the procedure for registration of cancellation of ownership transfer registration, which was caused by sale and purchase of No. 39377 of the Seoul District Court’s receipt on September 18, 1962, against the Plaintiff, Defendant 2 fulfilled the procedure for registration of cancellation of ownership transfer registration, which was caused by sale and purchase of No. 7250 of the same Act on the said real estate, respectively. The costs of the lawsuit shall be borne by the Defendants at both the first and second instances.

The non-party 1, who is the husband of the plaintiff, issued one promissory note in the name of the plaintiff as of August 17 of the same year with the amount of 166,300 won due to the tort compensation liability against the defendant 1, and set up a mortgage of 200,000 won with the maximum debt amount on the real estate stated in the attached list in order to secure the above debt, and separately agreed that if the plaintiff fails to repay his debt by the above payment date, the ownership of the above real estate shall be transferred to the defendant. Since the plaintiff failed to fully repay the above debt by the above payment date, the defendant again made the registration of transfer of ownership on September 28 of the same year and sold it to the defendant 2 on February 13, 1963, and completed the registration of transfer of ownership on the 23th of the same month, there is no dispute between the parties.

In light of the legal view that this contract between the Plaintiff and the Defendant 1 is a time limit or conditional sale security contract, and at the same time, a mixed contract with the nature of a mixed contract including a promise for payment in kind, the Plaintiff was able to lead and experience in the above contract.

Even if the plaintiff's urgent and difficult situation is considerably imbalanced and unfair contracts that violate the public order and good morals, and even if not, they entirely include a promise of accord and satisfaction in favor of the plaintiff, which is the debtor, and thus, it is null and void by Articles 607 and 608 of the Civil Act. Thus, since the registration of transfer of the real estate in the name of defendant 1 based on such invalidation contract is null and void, the registration of transfer of the real estate in the name of the defendant 2 is also asserted to be invalid because it is a balp that is acquired from the right holder without the right holder.

In light of the above facts, the contract between the plaintiff and the defendant 1 is an agreement which provides that if the defendant does not pay his monetary obligation by the due date, the ownership of the real estate is over the same as that of the defendant, and the return of the real estate borrowed by the person who borrowed the real estate as stipulated in Article 607 of the Civil Code is a promise to return the real estate in lieu of other property rights to the defendant (the plaintiff's opinion on the legal nature of this contract shall not be taken to the extent of conflict with the above court's judgment) without any dispute over the establishment of the above collateral, it is reasonable to conclude that the agreement between the court below and the defendant 1 is an agreement which provides the defendant with the view to the sale of the real estate at the time of the above agreement and the value of the real estate at the time of sale at the time of the above agreement is no more than that of the plaintiff's original collateral and no more than that of the non-party 1, 205, and 300,000 won, the remaining amount of the real estate at the time of the agreement is no more than that of the above agreement.

If so, in this case, if the plaintiff is the person who has failed to repay his obligation (the plaintiff was paid one additional obligation, but there is no evidence to acknowledge it), the registration of transfer of ownership in Defendant 1 on this real estate shall be valid as a disposition to implement the weak sale security contract as above, and Defendant 2 purchased the real estate from a legitimate wife as above and completed the registration of transfer of ownership. It shall not be deemed as a registration without any cause.

Therefore, the judgment of the court below which dismissed the plaintiff's claim seeking cancellation of the plaintiff's claim on the premise that the registration in the name of the defendants is null and void shall be justified, and the plaintiff's appeal shall be dismissed, and the costs of appeal shall be borne by the plaintiff, who is the losing party, as per Disposition.

Judges Kim Young-ju (Presiding Justice)