(영문) 대법원 2016.4.15.선고 2013다67235 판결

The part of the judgment of the court below against the defendant (Appointed) and the designated parties shall be reversed, and that part of the case shall be remanded to the Gwangju High Court.

The plaintiff's appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. As to the grounds of appeal Nos. 1 and 2, the lower court rejected all the Plaintiff’s assertion that the instant agreement was null and void as an unfair juristic act stipulated in Article 104 of the Civil Act or a juristic act contrary to social order stipulated in Article 103 of the Civil Act, based on its stated reasoning. In light of the relevant legal principles and records, the lower court did not err by omitting judgment or by misapprehending the legal doctrine on unfair

B. Ground of appeal No. 3

1) As to the validity of the transfer security

A) The allegation in the grounds of appeal is erroneous in the misapprehension of the judgment of the court below that the plaintiff can seek the implementation of the procedure for cancellation registration after paying the liquidation money to the defendant A, on the premise that the above registration of ownership transfer is valid as a transfer for security without going through the liquidation procedure under Articles 3 and 4 of the Provisional Registration Security Act (hereinafter referred to as the "Provisional Registration Security Act"), where the principal registration based on provisional registration is made based on provisional registration without going through the liquidation procedure under a special agreement entered into with the debtor. If the special agreement is unfavorable to the debtor, it cannot be deemed valid within the purpose of security as a transfer for security. Therefore, it shall be deemed that the registration of ownership transfer under the name of the defendant (the appointed party; hereinafter referred to as the "defendant") is invalid without going through the liquidation procedure under the agreement in this case.

B) However, in a case where a promise to return a substitute is null and void pursuant to Articles 607 and 608 of the Civil Act and is in force as a weak meaning of a transfer security agreement, if a creditor has not yet acquired a transfer security right, then Articles 3 and 4 of the Provisional Registry Act concerning liquidation procedures is not applicable, and a creditor may register the transfer of ownership under his/her own name on the ground of a transfer security agreement without need to undergo liquidation procedures (see, e.g., Supreme Court Decision 2011Da106778, Sept. 27, 201).

C) Based on evidence, the lower court acknowledged the fact that Defendant A completed the registration of transfer in his name to acquire the security right in accordance with the instant agreement, even though it is null and void as a promise to return the substitute property, and that Defendant A completed the registration of transfer in one’s own name. In such a case, the lower court cannot be said to undergo liquidation procedures provided for in Articles 3 and 4 of the Provisional Registration Security Act before completing the registration of transfer in one’s own name.

D) Therefore, we cannot accept the first ground of appeal on a different premise. Supreme Court Decision 2007Da49595 Decided December 12, 2007, which stated that the appeal was made in a written notice, cannot be invoked in the instant case on the contrary of the instant case.

2) On the secured claim of the right of retention

A) The allegation in the grounds of appeal is with the purport that the lien holder is able to attract goods and can not seek the payment of the secured debt to the owner. Thus, when calculating the liquidation amount to be paid to the debtor by the secured party, the secured party shall not deduct the secured debt of the lien from the value of the secured real estate. If a deduction is made, only the amount corresponding to the portion actually occupied by the lien holder should be deducted. However, the court below erred by deducting the total amount of the secured debt of the lien established after the instant agreement from the value of the secured real estate.

B) Article 4(1) of the Provisional Registration Security Act provides that the amount of liquidation money to be paid by a creditor to an obligor, etc. shall be calculated by deducting such amount from the value of real estate subject to security based on the time when the obligee notifies the obligor of the exercise of security right, and if a person has a prior security right to real estate subject to security, the amount of the secured claim shall be included in the amount of the secured claim to be deducted, and the amount of the secured claim subject to the right of retention concerning real estate subject to security should also be deemed to be included in the amount of the secured claim subject to the above deduction. In addition

C) Based on evidence, the lower court acknowledged, based on the point of time when Defendant A notified the Plaintiff of the exercise of the security right, that it exercised the right of retention on part of each of the instant real estate, and determined the amount of the liquidation money to be paid by Defendant A to the Plaintiff, and deducted the total amount of the secured claim of the said right from the value of each of the instant real estate, which

D) Examining the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the computation of liquidation money under the Provisional Registration Security Act, contrary to what is alleged in the grounds of appeal.

2. As to the Defendants’ grounds of appeal

A. As to the grounds of appeal Nos. 1 and 4

The lower court determined that the Defendant F and the designated parties knew that the lien was established on July 20, 2009, and that when the Defendant F and the designated parties acquired each of the instant real estate from the Defendant A, the ownership transfer registration in the name of the Defendant A was the registration for the purpose of collateral security for the Plaintiff’s credit.

In light of the relevant legal principles and records, the lower court did not exhaust all necessary deliberations, as alleged in the grounds of appeal, and did not err by misapprehending the law of logic and experience or by misapprehending the relevant legal principles.

B. Regarding ground of appeal No. 2

1) The allegation in the grounds of appeal is with the purport that, even if the instant lien was not established at the time of the conclusion of the instant agreement, it was anticipated that the instant lien was established at the time, and actually established after the instant agreement, and thus, when determining whether the instant agreement violated Article 607 of the Civil Act, the amount of the secured claim of the lien should be deducted from the value of each real estate in the instant case, and considering the above circumstances, Article 608 of the Civil Act and the Provisional Registration Security Act should not be applied. However, the lower court erred in determining that the instant agreement is subject to the Provisional Registration Security

2) Whether a promise to return a substitute violates Article 607 of the Civil Act shall be determined at the time of such promise (see, e.g., Supreme Court Decision 95Da34781, Apr. 26, 1996). As such, the secured claim amount of the right to collateral security and the secured claim of the right to retention, which was not established at the time of the return of the substitute, shall not be considered when determining whether the secured claim of the right to collateral security and the secured claim of the right to retention are violated Article 607 of the Civil Act. In addition, even if the instant agreement was violated Article 607 of the Civil Act, the assertion that Article

3) For the reasons indicated in its reasoning, the lower court did not err by misapprehending the legal doctrine on the application of Articles 607 and 608 of the Civil Act, contrary to what is alleged in the grounds of appeal, in determining that the instant agreement was invalid as a promise to return a substitute where the value of each of the instant real property exceeds the principal and interest of the loan, and that the Provisional Registration Security Act shall apply as a weak meaning of a contract for security by means of transfer.

1) Article 4(1) of the Provisional Registration Security Act provides that the amount of secured claim shall be deducted from the value of the real estate when there is a right, such as a senior security, to the secured real estate as at the time of notification of the exercise of the security right in relation to the calculation of the liquidation amount. If the secured creditor acquired a claim for indemnity by subrogation of the debtor's obligation under the senior security deposit against a third party in order to preserve his/her contractual right before the exercise of the security right, barring any special circumstance, such claim for indemnity shall also be deemed secured by the security contract, barring any special circumstance. Thus, when calculating the liquidation amount, the amount of the claim for indemnity shall be deducted from the value of the real estate (see, e.g., Supreme Court Decision 2006Da46

2) The lower court determined that the liquidation amount remains without deducting the amount of the claim for reimbursement due to the subrogation from the value of each real estate, while recognizing the fact that Defendant F and the designated parties acquired each of the instant real estate from Defendant A and subrogated for the secured debt regarding the relevant real estate, and determined that it is inappropriate to notify the Plaintiff that the liquidation amount does not remain to the Plaintiff, and that the liquidation procedure has not yet been completed.

3) However, it is difficult to accept such determination by the lower court for the following reasons.

A) If Defendant A transferred each of the instant real estate to Defendant F and Selections, in lieu of the payment of the transfer proceeds, Defendant F and Selections of the acquisition of senior collateral obligation, Defendant F and Selections in lieu of the payment of the transfer proceeds, the performance of the senior collateral obligation by Defendant F and Selections is not substantially different from the performance of the above collateral obligation by Defendant F and Selections by receiving the transfer proceeds from Defendant F and Selections, and thus, Defendant F and Selections’ subrogation should be deemed to have acquired the claim for reimbursement due to the payment by subrogation of Defendant F and Selections.

B) Therefore, the lower court should have further examined whether Defendant A, Defendant F, and the designated parties acquired a senior collateral security obligation in lieu of the payment of the transfer price, and should have determined whether Defendant F and the designated parties acquired a claim for indemnity by subrogation, and whether the amount of the claim for indemnity should be deducted from the value of the real estate when calculating the liquidation amount.

C) Nevertheless, the lower court erred by misapprehending the legal doctrine regarding the calculation of the liquidation amount, which led to the failure to exhaust all necessary deliberations, without examining the aforementioned circumstances.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.