The effect of deposit for partial performance of obligations

Where the Defendant has made a provisional registration for the security of a claim and made a principal registration for the transfer of ownership on behalf of the senior security holder, the secured claim cannot be deemed to have been extinguished only by the deposit for repayment of part of the obligation that is not all the above obligations, and therefore the Plaintiff may not request the cancellation of the principal registration of provisional registration and transfer of ownership.

Article 487 of the Civil Act

September 13, 197, 76Da186 decided Sep. 13, 197 (Supreme Court Decision 11582, Decision 487(20)432, Court Gazette 570, 10287)

Plaintiff

Defendant

Busan District Court (79Gahap412)

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The original judgment shall be revoked.

On June 7, 1976, the provisional registration made by the Busan District Court No. 28748 on June 7, 1976 as Busan District Court Receipt Office No. 28748, and the registration procedure for cancellation of ownership transfer registration made on February 20, 1978 as No. 12906 on the same registry office received on February 20, 1978, with respect to 14 square meters within 28 square meters in the house of saves assessment unit of Appendix No. 2108 of the ground table 2108 on the ground section in Busan-gu, Busan-gu.

Litigation costs shall be borne by the defendant.

The real estate stated in the purport of the claim (hereinafter referred to as this real estate) is originally owned by the deceased non-party 1, who is the mother of the plaintiff, and the fact that this real estate has been filed by Non-party 1 in sequence for provisional registration and ownership transfer registration, such as the entry in the purport of the claim, in the future of the defendant, is

However, the plaintiff asserted that the non-party 1 secured the real estate at the time of existence and borrowed 1,20,000 won from the defendant over several occasions from 1975 to 1977 with a monthly interest rate of 3,5,000 won. The plaintiff, the inheritor of the non-party 1, as the plaintiff, deposited 2,160,420 won in total, including 1,200,000 won of the above borrowed principal and 960,420 won of the interest accrued up to the time, and on April 2, 1980, the defendant deposited 2,160,420 won in arrears of the house bank loans paid by the defendant for the house bank loans and 235,790 won of acquisition tax and 43,895 won of acquisition tax and 4,105 won of the guaranteed loan, making a full claim for the registration of each of the secured claims.

In full view of the statements in the evidence Nos. 1 to 3, 2-1 to 3, 3-1 to 5 of the evidence Nos. 1 to 3, and 3-1 to 5 of the evidence Nos. 1 to 3, and the testimony by Non-Party No. 2 of the original trial witness, the debtor, as of June 3, 1976, was already liable for the debt of 1.9 million won with the interest rate of 3% per month to the defendant as of June 3, 1976 (as of December 3, 1976), the above provisional registration was made in the name of the defendant as of June 7, 197 to secure this, and the defendant is the creditor, the secured party, and the defendant is not liable for the above provisional registration as to the above real estate as of July 12, 197 to the non-party No. 3 corporation as the senior security right holder of the real estate, and the fact that the non-party No. 3 was subrogated to the above amount of the above real estate No. 4 had been paid by Busan. 5.

On the other hand, according to Gap evidence Nos. 4 and 5 (each deposit) without dispute over the establishment, the plaintiff deposited 2,160,420 won with the interest at the rate of 25 percent per annum, which is the legal interest rate up to the above principal and the up to the legal interest rate, on May 16, 1979, on the premise that the loan principal of the non-party deceased against the defendant of the above non-party deceased, who is the deceased, was a total of 1.2 million won, and on April 2, 1980, the plaintiff deposited 2,160,420 won with the above principal and the interest at the rate of 2.5 percent per annum, which is the above principal and the up to the previous legal interest rate, and on April 2, 1980, the defendant deposited 235,790 won with the overdue amount of the house bank loan and 43,895 won with the acquisition tax amount as above, but it is also difficult to extinguish the above amount of the guaranteed debt.

Therefore, the plaintiff's claim for objection based on the plaintiff's repayment of the full amount of debt secured by this case's real estate shall be dismissed without any further need to decide on other points. Since the original judgment that forms the same conclusion is justifiable, the plaintiff's appeal shall be dismissed as without merit, and it is so decided as per Disposition by applying Articles 89 and 95 of the Civil Procedure Act to the burden of the cost of lawsuit.

Judges Choi Jae-ho (Presiding Judge)