Plaintiff

Defendant

November 30, 2010

Cheongju District Court Decision 2009Kadan4745 Decided May 19, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance shall be revoked. In the distribution schedule prepared by the above court on December 7, 2009 with respect to the auction of real estate (Cheongju District Court Decision 2008Tacheon-gu, 4772), the dividends of the plaintiff shall be corrected to KRW 55,546,956, and the dividends of KRW 204,901,82 against the defendant shall be corrected to KRW 149,354,926, respectively.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in Gap evidence Nos. 1 and 6.

A. On August 16, 2006, the registration of ownership transfer was made in the name of Nonparty 1 with respect to the 305,653m2 (hereinafter “instant land”). On the same day, on August 16, 2006, the provisional registration of the right to claim ownership transfer under the name of the Defendant was made (hereinafter “instant provisional registration”). Since then, on the instant land, the ownership transfer registration was made in the name of the Geum River Forestry Cooperatives (hereinafter “ Geum River Forestry Cooperatives”) with respect to shares in the 272,728.5/305,653, out of the instant land, and the Plaintiff provisionally attached the shares of the Geum River Forestry Cooperatives on February 2, 2007.

B. Nonparty 2, the mortgagee of the instant land, prepared a distribution schedule with the content that distributes each of KRW 204,901,82 to Nonparty 2, the mortgagee of the instant land, at the request of Nonparty 2, in the Cheongju District Court Decision 2008Mata-Ma4772, and the auction court, in the first order of the amount to be actually distributed as of December 7, 2009, KRW 456,231,522, which is the amount to be actually distributed as of December 7, 2009, and in the second order of KRW 1,329,640, and KRW 250,000 to Nonparty 2, the mortgagee of the instant land, the mortgagee of the instant provisional registration, in the third order, distributed each of KRW 204,901,882 to the Defendant, the

C. The Plaintiff appeared on the date of distribution of the above auction procedure and raised an objection to KRW 5,546,956 of the amount of the Plaintiff’s claim against the Defendant, and filed the instant lawsuit on December 10, 2009.

2. Summary of the plaintiff's assertion

The provisional registration of this case was made by the defendant to the non-party 1, who is the owner of the land of this case, with a loan of KRW 75 million as the purchase price of the land of this case, and the non-party 1 agreed to return a total of KRW 1.5 million to the defendant after the development of the land of this case plus KRW 30 million, and completed to guarantee the defendant's obligation of the above loan, etc. In around 2008, the defendant and the non-party 1 prepared a loan certificate (proof No. 2 of this case) which is the underlying document of the provisional registration of this case, and completed the provisional registration of this case on June 7, 2006, which is the day before the provisional registration of this case. The loan principal and interest of this case were increased to KRW 1.5 million and paid interest of KRW 1.5 million to the non-party 1,500,000,0000,000 to the defendant as above, and it is unfair to distribute the dividend to the defendant as stated in the claim.

3. Determination

According to Gap evidence Nos. 1 through 5 and non-party No. 1's testimony, non-party No. 1 borrowed KRW 75 million from the defendant with the purchase price of the land of this case, and the non-party No. 1 agreed to return the profit of KRW 30 million to the defendant together with the above KRW 15 million as collateral obligation, and on the land of this case, on August 16, 2006, the right to claim transfer of ownership under the defendant's name has been registered, and on the other hand, the non-party No. 1 and the defendant had delayed the return of KRW 1.5 million with the principal and interest of KRW 1.5 million which were paid to the defendant before the decision to commence compulsory sale of the land of this case, around 2008, around 2008, "No. 200 million won with the principal and interest of KRW 80 billion with the above KRW 300,000,000 per annum 20,000,000.

On the other hand, in concluding a contract to establish a provisional registration security right, the agreement that the creditor and the debtor should also include the obligation that will arise after the provisional registration in the scope of the secured obligation of the real estate subject to provisional registration is publicly notified by the provisional registration, and thus, the existence of a security right to provisional registration is not subject to the provisional registration, and thus, it does not require a junior creditor to omit any unexpected risk (see Supreme Court Decision 92Da12070, Apr. 13, 1993). The purchase price on the purchase and sale reservation document, which is a certificate of cause of provisional registration, is merely an entry in the provisional registration procedure’s convenience, and the secured obligation of provisional registration is not limited to that, and the scope of the secured obligation is determined by the agreement between the parties (see Supreme Court Decision 80Da2320,

Therefore, the secured obligation of the provisional registration of this case is not limited to the obligation owed by Nonparty 1 to the Defendant at the time of the provisional registration of this case, but also includes the obligation incurred after the provisional registration pursuant to the agreement between the Defendant and Nonparty 1, and is not limited to the purchase price on the purchase agreement. Thus, inasmuch as the Defendant and Nonparty 1 agreed to pay interest of KRW 15 million on or around 2008, 3% per month for the above 15 million, the secured obligation of the provisional registration of this case shall be the amount including the 15 million won and the interest thereof, and even if the above loan was not prepared at the time of the provisional registration of this case, it shall be deemed that the Defendant has the right to receive dividends by submitting a claim report based on the loan certificate stated in the above agreement to the Defendant.

Therefore, the plaintiff's claim of this case is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-Gyeong (Presiding Justice)