If the value of an object is less than the amount of principal and interest obligation, the legal relationship after a principal registration on the basis of the provisional registration has been made.

In the so-called provisional registration security contract, unless otherwise stipulated, if the value of the object at the time of the purchase and sale is less than the amount of principal and interest, the purchase and sale promise shall be lawful and effective, and if there is a declaration of intention to complete the purchase and sale in the absence of obligation in accordance with the contents of the promise, the effect of the sale takes effect, and by making the principal registration on the basis of the provisional registration, the entire amount of the obligation shall be extinguished, and the creditor shall acquire the ownership

Article 372 of the Civil Act

Plaintiff

Defendant

Seoul Civil District Court (83 Gohap1323, 6332)

1. Revocation of the part against the defendant in the original judgment against the principal lawsuit, and the plaintiff's claim against that part is dismissed.

2. The defendant's counterclaim is dismissed.

3. Of the costs of lawsuit, the part concerning the principal lawsuit shall be borne by all the plaintiff, while the costs of appeal against the counterclaim shall be borne by the defendant.

The defendant shall pay to the plaintiff the amount of 27,783,50 won and the amount of 5 percent per annum from October 11, 1981 to the service date of a duplicate soar, and the amount at the rate of 25 percent per annum from the next day to the full payment.

The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.

Counterclaim: On April 15, 1981, the Plaintiff made a provisional registration with respect to the real estate recorded in the attached list to the Defendant under Article 14856 of the Seoul District Court’s receipt on April 15, 1981, and fulfilled each procedure for cancellation of the transfer of ownership registration, which was made on December 23, 1982 at the same court.

The judgment that the lawsuit costs shall be borne by the plaintiff.

With respect to the principal lawsuit, a judgment identical to the original judgment shall be sought, and with respect to the counterclaim, a judgment identical to that of the purport of the claim shall be revoked.

1. Demand for principal lawsuit:

A) In light of the above facts, Gap evidence Nos. 1, 2, 4, and 5-1, Gap evidence Nos. 6-2, Eul evidence Nos. 2, and Eul evidence Nos. 2, the court below's appointment of the non-party 1's witness Nos. 9 and the whole purport of the pleading no later than 0-1, 1, 3, 1, 1, 2, and 9-1, 1, 1, 2, 3, 1, 3, 1, 1, 1, 1, 3, 1, 5, 1, 1, 1, 5, 1, 1, 1, 5, 1, 1, 5, 1, 1, 5, 1, 1, 1, 1, 6, 1, 1, 3, 1, 1, 3, 1, 1, 1, 1, 6, 1, 3, 1, 3, 1, 5, 1, 4, .

B) The plaintiff, like the above paragraph (a) above, has a claim for the principal and interest of KRW 60 million against the defendant, and filed a provisional registration as to the real estate in order to secure his claim, and filed a lawsuit against the defendant on December 23, 1981 due to the defendant's failure to perform his obligation, and the principal registration was made on May 25, 1983, and the real estate in question was settled as of May 25, 1983 at the market price was 42,916,500 won, and the above real estate was 10,50 million won, which was protected under the Housing Lease Protection Act, and if the amount was deducted from the obligation to return the deposit with the above real estate, the plaintiff claimed that the amount repaid with the security interest was 32,216,500,000 won (60,000-2,92,500,000 won and damages for delay as to the defendant's claim and the remaining amount were 30,0075,00005 won.

According to the facts acknowledged in the above A, since a pre-sale agreement on the real estate of this case is concluded to secure the principal and interest of this case by taking the form of a pre-sale agreement, and it is concluded to secure the obligation of the principal and interest of this case, and its obligation is passed through a provisional registration to preserve the right to claim the registration of transfer of ownership, this is a provisional registration security agreement. In this case, if the value of an object offered as a security exceeds the principal and interest amount of the object, the pre-sale agreement is null and void as it goes against Articles 607 and 608 of the Civil Act. Thus, if the value of an object offered as security exceeds the principal and interest amount of the object at the time of such provisional registration, the pre-sale agreement is null and void as it goes against the principal and interest amount of the object at the time of such provisional registration, but the provisional registration is effective only to the extent of securing the principal and interest of the object, and even if it goes through the principal registration upon the provisional registration, the obligation is extinguished only after the settlement procedure, and if there is no special agreement between the obligee and the remaining amount of the object.

If the obligation continues to exist even after this registration is made on the basis of the provisional registration, and if the obligation is extinguished only within the limit of the value of the object at the time of settlement, the obligee’s purchase of the object with the full amount of the principal and interest in the event of default is contrary to not only to the declaration of intention of the party stipulated in the sale promise but also to avoid the establishment of the mortgage and the intention of the party who selected the sale promise, as well as to avoid the establishment of the security by means of

In this regard, in the case of this case where there is no assertion and proof that there is a special agreement to oppose at the time of the promise to sell and purchase this case, the plaintiff had the principal registration on the real estate of this case from December 23, 1981 on the basis of the above provisional registration, and the total amount of the principal and interest of this case 60 million won has expired, so the plaintiff's assertion based on the premise that it continues to exist due to its intention from the opposite perspective is no longer necessary to review the remainder.

2. Claim for a counterclaim;

The defendant, as the cause of the counterclaim of this case, made endorsement on the promissory note issued by non-party 1 on several occasions from December 1980 to March 23, 1981, and delivered 333,000,000 won from the plaintiff to the plaintiff, and delivered the documents required for provisional registration on the real estate of this case and all documents necessary for filing a lawsuit telephone, and repaid the above principal and interest in full until August 9, 1981. Thus, even if all the secured debt of this case was extinguished, the plaintiff was in possession of all documents necessary for filing a lawsuit telephone and registered on December 23, 1981, the registration is null and void, and since the provisional registration of this case and the principal registration of this case made for the purpose of the security became extinct, the plaintiff has a duty to cancel all the secured debt.

On the other hand, according to the evidence adopted in the claim of the principal lawsuit, the provisional registration and the principal registration of this case are only recognized to have been registered as the same circumstance as the principal claim, and the defendant's assertion is groundless since the provisional registration of this case and the principal registration of this case are only acknowledged to have been registered as the principal claim of this case in accordance with the evidence adopted in the claim of the principal lawsuit, which is consistent with the defendant's argument that the secured debt of this case was fully repaid until August 9, 1981 by the Defendant's assertion that the secured debt of this case was fully repaid by the Defendant's assertion that the secured debt of this case was fully repaid by August 9, 1981.

3. Conclusion

Therefore, all of the plaintiff's claims on the principal lawsuit and the defendant's counterclaim are dismissed without merit, and since the original judgment on the principal lawsuit is unfair since the original judgment on the principal lawsuit partially accepts the plaintiff's claims, the defendant's appeal is with merit, and the part against the defendant's claim is dismissed, and the original judgment on the counterclaim is justified with this conclusion, so the defendant's appeal is dismissed without merit, and it is so decided as per Disposition by applying Articles 89 and 95 of the Civil Procedure Act to the cost of lawsuit.

Judges Noh Jeong-chul (Presiding Judge)