Head of a board of directors (Law Firm Jinho, Attorneys Yoon-won et al., Counsel for the defendant-appellant)

Kim Tae-ro (Attorneys O Young-young et al., Counsel for the defendant-appellant)

September 10, 2004

1. The Plaintiff:

A. The Defendant simultaneously with the Plaintiff’s receipt of KRW 121,636,790 from the Plaintiff, and simultaneously with the registration procedure for cancellation of the registration of the transfer of shares that was completed under Article 7008 of the Daejeon District Court’s receipt of the Daejeon District Court’s 74-18, Oct. 23, 2001 with respect to 1/2 shares out of the 74-6 m2 of the 1431m2 in Yan-dong, Yancheon-si, Yan-dong, Yandong-si, and

B. The defendant received 531,937,405 won from the plaintiff and 94,113,490 won among them, 398,621,097 won from February 12, 2001, 38,012, 190 won from December 13, 2001, and 1,190,058 won from October 14, 2002 to the day of full payment, with 5% interest per annum from October 14, 2002 to the day of full payment, and with respect to 1/23 square meters of 74-6,000 square meters of 1431 square meters of 74-6,6, 1431 square meters of 1431 square meters of 74-18,823 square meters of 1,200, Daejeon District Court shall accept the registration of claim for reimbursement and cancellation of shares from the Daejeon District Court No. 7434,84,1,1200.

2. The plaintiff's remaining claims are dismissed.

3. Three minutes of the lawsuit are assessed against the plaintiff and the remainder are assessed against the defendant.

1. The primary purport of the claim

On November 23, 2000, the Defendant received KRW 121,636,790 from the Plaintiff at the same time, and simultaneously implemented each procedure for the cancellation of the registration of the transfer of shares No. 7008, Oct. 23, 200, with respect to one-2 shares among 74-6, 1431m2, and one-half shares among 74-18, 823m2, of the same 74-14, 700m2.

2. Preliminary purport of claim

The defendant shall pay to the plaintiff 1,072,066,487 won with 5% per annum from March 8, 2003 to the service date of the complaint of this case, and 20% per annum from the next day to the full payment date.

1. Basic facts

The following facts may be acknowledged either without dispute between the parties or by taking into account the whole purport of the pleading of the fact as to Gap evidence 1-1, 2, 4-1 through 4, 8, 9, 10, Gap evidence 5, 6, 10, Eul evidence 2, 5- Eul evidence 7-4, 7, 8, 10, 11, 12, 29, 31-1, 11-2, Eul evidence 1-2, 15, 17-1, 17-2, 17-1, 17-1, 3-1, 4-1, 7-1, 7-2, 7-1, 7-4, 7-1, 7-2, 7-1, 7-4, 7-1, 7-1, 7-2, 3-4, 7-1, 4-1, 7-2, 4-1, 7-2, 4-1, 1-2

A. On April 10, 1998, the Plaintiff and the Defendant jointly purchased 74-6 m2, 1431 m2, 74-6, 74-18, and 823 m23 m2, 74-6, 74-6, and completed the registration of transfer of shares on the 14th of the same month with respect to the land above 74-6 m2, and on the 20th of the same month with respect to the land above 74-18.

B. On May 13, 1999, the Plaintiff and the Defendant set up a right to collateral security on the instant land to the Youngdong Community Depository, and received a loan of KRW 450,000,000 in the name of the Plaintiff (hereinafter “the instant loan”), and 350,000,000 among them, the Plaintiff used the remainder of KRW 1,00,000,000 respectively.

C. Meanwhile, as the credit guarantee certificate issued by the Korea Credit Guarantee Fund as a collateral under the joint and several sureties of the Plaintiff, Nonparty 10,000 won was borrowed from the Korea Credit Guarantee Fund as collateral and its principal and interest were not repaid, the Korea Credit Guarantee Fund received a provisional attachment order of KRW 30,00,000 of the claim amount on July 12, 200 and completed provisional attachment registration on September 28, 200 and completed provisional attachment registration following the provisional attachment order of KRW 70,000,000 of the claim amount on September 28, 200.

D. Of the instant loans, the Plaintiff paid interest of KRW 350,00,000 used by himself to November 1, 1999, and thereafter, the interest was delayed. The Defendant also was unable to be exempted from arrears even if he paid interest on KRW 100,00,000 used by himself, and the Defendant was also unable to pay the interest, and the Defendant also filed an application for a voluntary auction on the instant land and received a decision to commence a voluntary auction on October 27, 200.

E. Accordingly, the Plaintiff and the Defendant intended to sell the instant land and resolve it, but they decided to withdraw the voluntary auction and jointly construct the building on the instant land. On November 22, 2000, if the Defendant lent KRW 200,000 to the Plaintiff, the Plaintiff would be responsible for withdrawing the above voluntary auction (such as overdue interest on the entire instant loan, penalty, and expenses for the withdrawal of auction (the Plaintiff’s overdue interest was due to overdue interest, and the Plaintiff was fully responsible for this portion) and the above provisional attachment of the Korea Credit Guarantee Fund established on the instant portion, and instead, the Defendant would obtain provisional registration on the instant portion as security, and if the Plaintiff failed to repay the said loan by not later than February 22, 2001, the Defendant agreed to make the principal registration (hereinafter the instant agreement).

F. According to the agreement of this case, the Plaintiff issued documents necessary for provisional registration and principal registration of the right to claim a transfer of shares in the name of the Defendant with respect to the instant shares, and the Defendant completed the registration of the right to claim a transfer of shares on November 23, 200 with respect to the instant shares by using the above documents on November 23, 200 (hereinafter “provisional registration of this case”).

G. The Defendant repaid 81,241,740 won in total and 12,871,750 won in advance of overdue interest and penalty for the entire loan of this case according to the purpose of the loan stipulated in the agreement of this case on December 2, 2000, and withdrawn the above voluntary auction. However, the remainder of the loan directly given to the Plaintiff was not paid to the Plaintiff.

H. Although the Plaintiff had urged the Defendant to pay the remaining loans, it is no longer problematic as the relationship with the Defendant to build a new building jointly with the Defendant. As a result of conflict with the Defendant during the construction process, the Plaintiff’s obligation was settled and demanded the Defendant to cancel the provisional registration of this case. However, the Defendant completed the transfer registration of shares on October 23, 2008 based on the provisional registration of this case on October 23, 2001 (hereinafter “instant principal registration”).

I. After December 12, 2001, the Defendant repaid KRW 450,00,00 and overdue interest of KRW 50,295,150 and penalty of KRW 12,217,690 for the loan, and cancelled the registration of the establishment of a neighboring mortgage established on the land of this case as a security for the loan. In addition, in order to cancel the provisional attachment of the Credit Guarantee Fund established on the instant share as a security, the Defendant paid the Credit Guarantee Fund more than the share ratio, and deposited KRW 38,012,760 on December 13, 2001, and KRW 1,190,058 on October 14, 2002, with the repayment of KRW 190,058 on December 14, 2002.

2. Judgment as to the main claim

A. Nature of the provisional registration of this case and whether the Provisional Registration Security Security Act (hereinafter referred to as the "Provisional Registration Security Security Act") is applied

According to the above facts, the provisional registration of this case is a provisional registration of security established to secure the plaintiff's obligation to borrow loans of KRW 200,000,000 against the defendant.

The Provisional Registration Security Act applies where the value of the object at the time of the promise to transfer other property rights with respect to the return of the object borrowed exceeds the aggregate amount of the borrowed amount and the interest attached thereto. As seen earlier, the provisional registration of this case aims at securing the Plaintiff’s obligation to borrow 200,000,000 won against the Defendant. According to the market price appraisal result of appraiser leapman as of November 22, 2000, it is recognized that the value of the land of this case as of November 22, 200, which is the time of the agreement of this case, was 932,497,00, and contrary to the evidence No. 9-1, No. 2, contrary to the above, there is no other evidence against the belief that the value of the share at the time of the agreement of this case is 1/2,46,248,500 won, which is 200,000 won with respect to the borrowed amount as of the provisional registration of this case, and thus the Provisional Registration Act applies more than the Provisional Registration Act.

B. Determination as to the claim for cancellation of the principal registration of this case

(1) The plaintiff's assertion

The plaintiff is seeking to cancel the principal registration of this case in return for the payment of KRW 121,636,790 from the plaintiff to the defendant.

(2) The validity of the principal registration of this case

㈎ 가등기담보법 제3조 에는 채권자가 담보계약에 의한 담보권을 실행하여 그 담보목적부동산의 소유권을 취득하기 위하여는 그 채권의 변제기 후에 같은 법 제4조 에 규정한 청산금의 평가액을 채무자 등에게 통지하여야 하고, 이 통지에는 통지 당시의 목적부동산의 평가액과 민법 제360조 에 규정된 채권액을 명시하여야 하며, 그 통지를 받은 날로부터 2월의 청산기간이 경과하여야 한다고 규정되어 있고, 같은 법 제4조 제1 내지 3항 에는 채권자는 위 통지 당시의 목적부동산의 가액에서 피담보채권의 가액을 공제한 청산금을 지급하여야 하고, 담보부동산에 관하여 담보가등기가 경료된 경우에는 청산기간이 경과하여야 그 가등기에 기한 본등기를 청구할 수 있으며, 청산금의 지급채무와 부동산의 소유권이전등기 및 인도채무는 동시이행의 관계에 있다고 규정되어 있고, 같은 법 제4조 제4항 에서는 제1 내지 3항 의 규정에 반하는 특약으로서 채무자 등에게 불리한 것은 그 효력이 없고, 다만, 청산기간 경과 후에 행하여진 특약으로서 제3자의 권리를 해하지 아니하는 것은 그러하지 아니하다고 규정되어 있으므로, 위 각 규정을 위반하여 담보가등기에 기한 본등기가 이루어진 경우에는 그 본등기는 무효라고 할 것이고, 설령 그와 같은 본등기가 가등기권리자와 채무자 사이에 이루어진 특약에 의하여 이루어졌다고 할지라도 만일 그 특약이 채무자에게 불리한 것으로서 무효라고 한다면 그 본등기는 여전히 무효일 뿐, 이른바 약한 의미의 양도담보로서 담보의 목적 내에서는 유효하다고 할 것이 아니다.

However, if a person entitled to provisional registration notifies an obligor, etc. of the appraised value of the liquidation amount in accordance with the procedure stipulated in Articles 3 and 4 of the Provisional Registration Security Act, and there is no liquidation amount to be paid or paid to the obligor, the registration becomes null and void upon the lapse of the liquidation period of two months from the date when the obligor receives such notification, can only become effective registration in accordance with the substantive legal relations (see Supreme Court Decision 99Da41657 delivered on June 11, 2002, etc.).

In the case of the principal registration of this case, according to the above facts, the defendant completed the principal registration of this case without going through the liquidation procedures prescribed in the Provisional Registration Security Act, so the principal registration of this case shall be null and void unless there are special circumstances.

㈏ 피고는, 이 사건 본등기를 마치기 전인 2001. 10.경 원고와 사이에, 피고가 이 사건 대출금 중 원고가 사용한 350,000,000원과 당시까지의 연체이자를 인수하고, 원고 대신 선영새마을금고에 변제한 경매취하비용에 대한 구상금청구를 포기하며, 신용보증기금의 가압류를 해결하는 조건으로 이 사건 지분에 관한 소유권을 확정적으로 취득하기로 하는 합의가 이루어졌고, 이에 따라 원고가 자진하여 이 사건 본등기를 경료해 준 것이라고 주장하나, 위 주장사실에 부합하는 을 제9호증의 기재는 믿기 어렵고 달리 이를 인정할 만한 증거가 없으므로(가사 위와 같은 내용으로 청산 합의가 이루어졌다고 하더라도, 이러한 합의는 강행법규인 가등기담보법 제3조 , 제4조 에 위반한 것으로서 같은 법 제4조 제4항 에 의하여 무효이다), 피고의 위 주장은 이유 없다.

(3) Whether the principal registration of this case is valid in accordance with substantive legal relations

The defendant asserts to the effect that the principal registration of this case was a valid registration in accordance with the substantive legal relations, since the defendant notified the exercise of the security right through the preparatory document on March 8, 2003 and two months have elapsed since the period of liquidation was two months thereafter.

On March 8, 2003, the amount to be claimed by the Defendant to the Plaintiff through the preparatory brief as of March 8, 2003, the Defendant asserted to the effect that the sum of KRW 350,000,000 and overdue interest of KRW 130,00,00, and KRW 12,000 for the withdrawal of auction by subrogation of the Plaintiff, and KRW 38,012,760, the sum of the above amounts to KRW 530,012,760, and the sum of these amounts to KRW 38,012,760, and the value of the shares of this case exceeds the value of the shares of this case. The above preparatory brief was delivered to the Plaintiff’s legal representative on March 13, 203, it is clear that there was no liquidation amount to the Plaintiff. However, according to the appraiser’s market value appraisal result, the aggregate amount of the above amounts to KRW 300,00,000,00 for each of the above amounts to 17080.

Therefore, insofar as the Defendant did not pay the Plaintiff the difference between the value of the instant share and the amount of the claim secured by the provisional registration of this case or the principal registration, it cannot be said that the Defendant had completed the liquidation procedure, and thus, the registration of this case does not have to be a valid registration consistent with the substantive legal relations, so the Defendant’

(4) The theory of lawsuit

Ultimately, the Defendant is liable to implement the procedure for cancellation registration of the principal registration of this case that is null and void for the Plaintiff, but the Defendant’s subrogation for the Plaintiff is liable to implement the procedure for cancellation registration of the principal registration of this case, as the Plaintiff seeks, by asserting that the amount of money that the Defendant subrogated for the Plaintiff is KRW 121,636,790.

C. Determination on the claim for cancellation of the provisional registration of this case

(1) The plaintiff's assertion

The Plaintiff sought to cancel the provisional registration of this case against the Defendant by receiving and repaying KRW 121,636,790, which is the secured debt amount of the provisional registration of this case.

On the other hand, since the provisional registration of this case is the provisional registration of this case as seen earlier, the obligor may claim for the cancellation of provisional registration completed for the purpose of securing the obligation by paying to the obligee the full amount of the secured obligation to the obligee and claiming for the cancellation of provisional registration completed for the purpose of securing the obligation (see Supreme Court Decision 96Da6974, 6981, Jul. 30, 1996, etc.). Thus, we examine whether the secured obligation secured by the provisional registration of this case is the amount as asserted by the Plaintiff.

(2) Scope of secured debt of the provisional registration of this case

① On December 2, 200 after the provisional registration of this case was completed by the Defendant, on December 2, 200, that the Plaintiff was fully responsible pursuant to the agreement of this case, paid KRW 81,241,740, total overdue interest and penalty, and KRW 12,871,750, the expenses for withdrawal from auction, to the Young Saemaeul Community Depository, as seen earlier. As such, the damages for delay from February 23, 2001, which is the sum of each of the above amounts, falls under the scope of secured liabilities of the provisional registration of this case, and the damages for delay from February 23, 2001, which is the due date under the agreement of this case.

② On December 12, 2001, the Defendant repaid KRW 450,00,00 for overdue interest of KRW 50,295,150 for loans and KRW 12,217,690 for overdue interest of KRW 450,00 for overdue interest of KRW 50,295,150 for the instant loans and KRW 12,217,690 for the instant loans prior to the instant provisional registration. In addition, the Defendant cancelled the registration of establishment of a neighboring community bank in the name of the Fund, which was established as security prior to the instant provisional registration, to cancel the provisional attachment of the Credit Guarantee Fund established prior to the instant provisional registration, as seen earlier.

The plaintiff asserts that the principal of the loan of this case and the amount of subrogation for the repayment of the non-party loan does not belong to the secured debt guaranteed by the provisional registration of this case, but it is reasonable to view that the right to indemnity is also secured by the provisional registration security contract unless there are special circumstances (see Supreme Court Decision 9Da41657 delivered on June 11, 2002) in the event a provisional registration security creditor paid a senior provisional registration security obligation to a third party by subrogation to preserve his contractual rights prior to the enforcement of the provisional registration security right, barring any special circumstances (see Supreme Court Decision 9Da41657 delivered on June 11, 2002). In light of these legal principles, in order to preserve the right to claim for the transfer registration of his share under the agreement of this case, the claim for indemnity that the defendant acquired against the plaintiff is to preserve the right to claim for the transfer registration of his share

Therefore, the Defendant’s amount of indemnity claim (i.e., KRW 350,00,00 used by the Plaintiff out of the instant loan; KRW 39,118,450 out of the overdue interest paid by the Defendant (i.e., KRW 50,295,150 x KRW 350,000 x 350,000 / 450,000) out of the penalty paid by the Defendant; KRW 9,502,647 of the penalty paid by the Defendant (i.e., KRW 12,217,690 x KRW 350,000 x KRW 350,000 /450,000 x below KRW 38,012,760, KRW 190 and KRW 1,058) out of the overdue interest paid by the Defendant; + KRW 437,931,50,005, KRW 3050,5050.

(3) Sub-decisions

Therefore, the defendant should claim cancellation of the provisional registration of this case from the plaintiff for the amount of KRW 531,937,40,05 (i) of the secured obligation of this case + KRW 94,113,490 of the above paragraph + KRW 437,823,915 of the above paragraph) and for KRW 94,113,490 of the above amount, from February 23, 2001, KRW 398,621,097 (= + KRW 350,000,000 + KRW 39,118,450 + KRW 9,502,647 of the provisional registration of this case + KRW 12,38,012,760 of the provisional registration of this case, which is the date of subrogation, and the plaintiff can claim cancellation of the provisional registration of this case from the date of provisional registration of this case to the date of repayment of the provisional registration of this case.

3. Conclusion

Thus, among the plaintiff's main claims, the claim for cancellation of the main registration of this case is accepted on the ground of its whole reasoning. The claim for cancellation of the provisional registration of this case is accepted within the scope of the above recognition, and the remainder is dismissed on the ground of its ground. Therefore, without examining the conjunctive claim, it is so decided as per Disposition without merit.

Judge Cho Jong-soo (Presiding Judge)