The case holding that a person who has trusted a provisional registration title for bond security to another person may seek confirmation of the existence of a claim directly against the debtor without representing the title trustee.

If the Defendant and the Intervenor provisionally filed a provisional registration against the Defendant with the right holder under a third party’s agreement to secure a claim against the Nonparty, even if there exists a trust relationship between the Intervenor and the Defendant to the extent that the Intervenor’s claim is secured, in relation to the relationship between the Intervenor and the Nonparty, the Intervenor’s claim security is a party to the security contract, and the said Nonparty is a party to the said security contract, and thus, the Intervenor may directly seek confirmation of the existence of the claim secured by the provisional registration against the said Nonparty

Article 404 of the Civil Act

[Judgment of the court below]

[Defendant-Appellee] Defendant 1

Attorney Lee Jae-ho et al., Counsel for the intervenor of independent party

Seoul High Court Decision 79Na339,1256 delivered on October 25, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. The plaintiff's main claim is a subrogated lawsuit where the plaintiff's claim for ownership transfer registration against the non-party 1 is based on the plaintiff's claim for ownership transfer registration against the non-party 1 and the non-party 1 exercises the right to claim cancellation of ownership transfer registration against the defendant, which the non-party 1 holds against the defendant, and thus, the defendant or the intervenor may claim against the non-party 1, the respondent

Meanwhile, according to the judgment of the court below, it is revealed that the defendant and the intervenor agreed to make provisional registration of this case to secure the claim against the above non-party 1 as the right holder under this third-party agreement. Thus, even if the above provisional registration is in a trust relationship (to the extent that the intervenor's claim is secured) between the intervenor and the defendant, it is the intervenor's claim security in relation to the above non-party 1, and it is clear that the non-party 1 is the party to the security contract.

Thus, the intervenor is the debtor and the above non-party 1 who is a security security may directly seek confirmation of the existence of the claim secured as the above provisional registration against the above non-party 1 (the defendant's subrogation) and therefore, it shall be a transfer to the plaintiff who exercises the right of the non-party 1's subrogation. Thus, the defendant who is the person entitled to the provisional registration of this case may participate in the principal lawsuit between the plaintiff and the defendant without subrogation.

In addition, in the cancellation of the provisional registration above, the participation in this case is legitimate, since there is a need and interest to determine the unity between the defendant and the non-party 1 and the intervenor. Therefore, the judgment of the court below to this purport is just, and there is no reason to criticize the original decision as a dissenting opinion, and the judgment of the party member at the time of debate cannot be seen as appropriate for this case.

2. As seen above, the intervenor does not subrogate the defendant's right to the provisional registration right holder, but it is clear that the obligee is the right holder against the non-party 1 who is the party to the provisional registration security contract. Thus, the judgment below is just in its purport and there is no misapprehension of the legal principles as to the trust.

3. According to the records, we affirm the fact that the provisional registration in the name of the defendant was made in order to secure the principal amount of the defendant's claim against the above non-party 1 and the principal amount of the intervenor's claim amounting to KRW 8,500,000 against the above non-party 1, and there is no violation of documentary evidence such as written theory in the preparation of evidence which was completed in the process. Thus, there is no error of 3,5,6,7,8.

4. Since the latter part of paragraph (2) of the judgment below is clearly the purport of confirming the current legal relationship between the intervenor and the defendant that there exists a title trust relationship between the intervenor and the defendant, the confirmation of the past legal relationship cannot be adopted as the fourth point in the lawsuit.

5. Examining evidence No. 1-6 (No. 9-3) based on the record, it is clear that the non-party 1 was first insolvent by the non-party 2 (non-party 1's husband) who received money from the defendant and the intervenors and delivered the money. Thus, the court below's explanation that the above non-party 1 first defaulted on the bill issued by the non-party 2 (the non-party 1's husband), starting with the above bill, etc. and requesting a security to make a provisional registration of this case on May 9, 1978, is against the reasons why the court below decided that the above non-party 1 would make a proposal for provisional registration for the defendant and the intervenors by predicting the bankruptcy of the above bill, and therefore, the above error does not affect the conclusion of the judgment. Thus, it is without merit.

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park So-young (Presiding Justice)