[1] The binding force of the judgment reversed

[2] The case holding that in a case where Gap sought revocation of the promise to return the substitute real estate and the real estate divided as owned by other co-owners, as Eul established a new provisional registration to substitute for the previous security registration on the real estate divided as owned by Eul after Eul borrowed money from Byung and establishing a provisional registration for real estate's co-ownership of the real estate owned by Eul in order to secure this loan from Byung, and then entered into a promise to return the substitute real property, and again entered into a promise to return the substitute real property into a promise to return the substitute real property owned by Eul, and Gap sought revocation of the provisional registration for the real estate divided as owned by other co-owners, on the ground that the promise to return the substitute real estate constitutes a fraudulent act, although the judgment of remand should be determined at the time of the pre-sale promise to return the substitute real estate, it was unlawful since the binding force of the judgment of remand was remanded.

[1] Article 8 of the Court Organization Act / [2] Article 8 of the Court Organization Act, Article 406 (1) of the Civil Act

[1] Supreme Court Decision 97Da14934 delivered on July 11, 1997 (Gong1997Ha, 2495)

(Attorney Cho Sang-hoon, Counsel for the defendant-appellant)

Defendant (Law Firm Democratic, Attorney Park Jin-ho, Counsel for defendant-appellant)

Supreme Court Decision 2014Da230894 Decided May 27, 2016

Seoul High Court Decision 2016Na2032023 decided October 6, 2016

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

The grounds of appeal are examined.

1. The court to which the case was remanded from the court of final appeal shall be bound, unless new arguments or evidences are presented during the deliberation process after remanding the case, and changes occur in facts which form the basis of binding judgment, in the trial process after remanding the case (see Supreme Court Decision 97Da14934 delivered on July 11, 197, etc.).

2. The record reveals the following facts.

A. On November 11, 201, the lower court: (a) concluded a promise to return part of the instant land owned by the Defendant on April 18, 2012 to secure the payment of the borrowed money; (b) concluded a promise to return property on April 20, 2012 with respect to the said portion of the instant land on the ground that the Plaintiff filed a lawsuit claiming reimbursement against the Nonparty on November 11, 201, and rendered a favorable judgment on the said judgment; (c) concluded a promise to return property on April 20, 2012 with respect to the said portion of the instant land on the ground that the Nonparty did not have any legal act for the purpose of returning the borrowed money; and (d) concluded a promise to return property on April 16, 2012 with respect to the said portion of the instant land, the lower court rejected the Nonparty’s registration as the sole owner of the instant land on September 16, 2012 after deducting the amount of the instant land for which the Nonparty and the Defendant had any legal act on April 1, 2.

B. As to this, the judgment of remanding the judgment below should be determined as at the time of establishing the provisional registration of collateral against co-ownership in case where the creditor exercises the right of revocation on the ground of fraudulent act on the provisional registration of collateral held in the real estate which was destroyed by the partition of co-owned property, barring any special circumstance. The judgment below reversed the judgment below which reversed the judgment of the court below on the ground that, in case where the provisional registration of collateral held in the first co-owned share was established after the partition of co-owned property was revoked on the first co-owned share and the provisional registration of collateral held in the first co-owned share was revoked, the creditor against the claimant can exercise the right of revocation if the creditor against the other co-owners exercised the right of revocation, unless there are special circumstances, such as that the provisional registration of collateral held in the co-owned share constitutes an unfair partition of co-owned property and constitutes fraudulent act. Furthermore, even in this case, whether the requirements for the return of collateral held in the second sub-owned property should be determined as at the time of the first preliminary return of collateral.

C. However, the lower court rejected the Plaintiff’s primary claim based on the premise that the return of the second substitute was a fraudulent act detrimental to the general creditor, and dismissed the Plaintiff’s preliminary claim seeking the revocation of the return of the first substitute, which was added by the lower court after the remand, on the ground that the Plaintiff’s preliminary claim seeking the revocation of the return of the second substitute, was limited to the exclusion period, even though it acknowledged the factual basis for the judgment on the return of the second substitute, as it was the same as the lower judgment prior to the remand.

3. Examining the above facts in light of the legal principles as seen earlier, the lower court’s failure to determine after remanding the Plaintiff’s primary claim at the time of the promise to return the second substitute goods is unlawful as against the binding force of the judgment of remanding. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, all the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Park Sang-ok (Presiding Justice)