(a) Criteria for distinguishing between whether the ownership transfer made to the creditor is made for payment in kind and whether the security for the previous obligation is granted;

(b) The case reversing the judgment of the court below that the ownership transfer registration made in the future for the creditor regarding forest land was made due to a payment in kind, not a transfer for security, on the ground that there was an error of law such as

A. In a case where a real estate owned by the debtor in relation to the obligation has been transferred to the creditor in the future, the issue of whether it was transferred to payment in kind, or whether it was transferred to secure the previous obligation is related to the interpretation of the intention of the party at the time of the transfer of ownership. In a case where there is no clear proof as to this issue, it should be determined whether it is the purpose of security by taking into account all the circumstances such as the amount of the obligation at the time of the transfer of ownership, the value of the real estate at the time of the transfer of ownership, the circumstances leading up to the acquisition of the obligation, the situation at the time of the transfer

B. The case reversing the judgment of the court below that the ownership transfer registration made in the future for the creditor regarding forest land was due to a payment in kind, not a transfer for security, on the ground that there was an error of law in misapprehension of legal principles

Articles 466, 105, and 372 of the Civil Act / [Transfer for Security]

B. Supreme Court Decision 74Da466 delivered on June 25, 1974 (Gong192, 667) 91Da11223 delivered on December 24, 1991

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Defendant

Seoul High Court Decision 91Na40513 delivered on April 22, 1992

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below rejected the defendant's claim for the above loan of 3,00 won on April 21, 1986 by transferring the above loan from the defendant to the above 40 million won to the above 5th interest rate for the above loan loan, and made a provisional registration for preserving the defendant's right to claim for transfer of ownership at the time of original adjudication on November 18, 197, and rejected the registration of transfer of ownership for reasons of sale on January 14, 1987 as well as for the above provisional registration as stated in the 1 through 4th of the same month on the 19th of the same year on the 3th of the same month on the 7th of the same year on the 19th of the same year on the 19th of the same year on the 10th of the above 7th of the same year on the 19th of the same year on the 1st of the above 7th of the same year on the 3rd of the above forest land.

In the case of this case, if a real estate owned by an obligor and its ownership transfer registration has been made in the name of the obligee in relation to the obligation, whether it was transferred in lieu of the repayment of the previous obligation (i.e., payment in substitutes), or whether it was transferred for the security of the previous obligation (i.e., the reservation of the liquidation procedure at the time of the transfer of ownership), the issue is about the interpretation of the intention of the parties at the time of the transfer of ownership. If there is no clear proof as to this issue, the amount of the obligation at the time of the transfer of ownership (including the obligation to a third party who bears the obligation), the value of the real estate at the time of the transfer of ownership (including the obligation to the third party who bears the obligation), the circumstance and the subsequent process of the acquisition of the obligation, the situation at the time of the transfer of ownership, and the control and disposal of the real estate thereafter, shall be considered as the object of the security, and if considering the reasoning of the judgment of the court below in light of the record, it shall not be justified that the registration

First, according to the records, around December 27, 1986, when the plaintiff was in crisis due to the aggravation of financial standing, the plaintiff defaulted on the 31st of the same month after the whole documents required for the registration of transfer of ownership of the forest of this case were transferred to the defendant. At that time, the above forest of this case was debts of 3,000 won for the above 3,00 won loan to the above 1,77 million won loan to the above 1,00 won community credit cooperatives who borrowed the forest of this case as collateral, and the seizure of the forest of this case in attached Table 5 at the time of original adjudication. According to the appraisal by Nonparty 3 of the judgment below rejected by the court below, it is difficult to view the above 200 million won trust price as the result of the appraisal by the appraiser of this case, and it is difficult to reduce the above 3,000 won trust price of the forest of this case with the above list 41,256,250,500 won and the above appraisal price of forest of this case.

According to the records, although the defendant did not state the value of three parcels (attached Form 1, 2, and 3) among five parcels of forest land transferred from the plaintiff in another place, it is more so more so in light of the fact that it is doubtful whether it is not sufficient to liquidate the plaintiff's previous obligation (including the defendant's subrogation) even if the area was 60,000 square meters near the area.

In addition, according to the witness non-party 4's testimony at the first instance court and the witness non-party 5's testimony rejected by the court below, the purport that the plaintiff's transfer of the registration of the ownership of the forest of this case to the defendant in the future is not payment in kind, but for securing the principal and interest of the plaintiff's loan to the defendant, and according to the records, the above witness non-party 4 stated the same purport in the relevant criminal case. It is difficult to find any circumstances to suspect the credibility of the above statement according to the records.

Considering such circumstances, it is reasonable to view that the Plaintiff transferred the registration of transfer of ownership of the forest of this case to the Defendant, instead of the payment in kind, for the purpose of securing the principal and interest of the loan.

However, according to the reasoning of the court below, since at the time of the registration under the name of the defendant as to the forest of this case, banks with respect to the debt of this case collected promissory notes from the defendant at the time of the registration under the name of the defendant, there was an agreement between the plaintiff and the defendant to extinguish the debt and debt relationship at that time. Therefore, the above registration under the name of the defendant was not made as a transfer for security but as a payment in kind. However, according to the records, the plaintiff received a loan from the defendant, and issued a promissorysory note (Evidence No. 12-32) which is not a promissory note (Evidence No. 12-2), and thereafter, the bank issued a promissory note (Evidence No. 11) to the defendant around July 1986, and it was difficult to conclude that the plaintiff paid the above promissory note to the defendant at the time of the above provisional registration under the name of the defendant as to the forest of this case, since the bank of this case had the above bank pay the promissory note to the defendant at the time of this case.

In addition, the remaining circumstances that the court below found in recognizing that the registration under the name of the defendant was due to accord and satisfaction, i.e., the plaintiff delivered the registration certificate, etc. of the forest of this case to the defendant and possessed by the defendant (in the case of transfer for security, the transfer for security, the registration certificate, etc. is generally held by the mortgagee), and the plaintiff delivered the installment savings passbook to the defendant in relation to the loan obligations to the current community credit cooperative, which took out the forest of this case as a collateral, and thereafter, the defendant cancelled the registration of the establishment of the neighboring mortgage by subrogation of the above loan obligation, or bears the tax and public charges on the forest of this case. etc., the registration under the name of the defendant as to the forest of this case cannot be deemed as a particular

Despite the fact that the court below should have deliberated and judged more on whether the registration of transfer of ownership in the name of the defendant with respect to the forest of this case was made by means of transfer for security by taking account of these points, the court below did not reach this conclusion, and judged that the above registration was caused by accord and satisfaction, not by transfer for security, not by transfer for security, and erred by misapprehending the legal principles on the transfer for security, thereby making an erroneous determination of facts by making an incomplete deliberation and making an error of determination of evidence and value.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)