[1] Whether the provisional registration is a provisional registration for security only by an agreement to cancel the provisional registration made for preserving the right to claim ownership transfer registration under the sales contract where the purchase price is returned upon cancellation of the agreement (negative)

[2] In a case where the provisional registration made to preserve the right to claim ownership transfer registration is agreed to be appropriated as a provisional registration to secure the obligation to return the price following the cancellation of a sales contract, whether the Provisional Registration Security Act applies (negative)

[1] Where a provisional registration has been made to preserve the right to claim ownership transfer registration based on a sales contract, and the seller returns the purchase price received from the buyer by agreement and the buyer cancels the provisional registration based on the sales contract, it shall be deemed that the duty to restore each party’s provisional registration upon the rescission of the sales contract is in the concurrent performance relationship. Therefore, it cannot be deemed that there exists an agreement between the seller and the buyer to use the provisional registration as the provisional registration for security

[2] The Provisional Registration Security Act applies to cases where the parties have promised to transfer other property rights with respect to the return of the borrowed object, and even if the parties have agreed to use provisional registration for preserving the right to claim ownership transfer registration under a sales contract as a provisional registration securing the obligation to return the borrowed object as a security for the cancellation of a sales contract, it shall not be deemed that the return of the borrowed object has been completed as a promise for payment in substitutes. Therefore,

[1] Article 1 of the Provisional Registration Security Act, Article 105 of the Civil Act / [2] Article 1 of the Provisional Registration Security Act, etc.

[1] Supreme Court Decision 95Da51694 delivered on September 6, 1996 (Gong1996Ha, 2975) / [2] Supreme Court Decision 91Da45356, 45363 delivered on April 10, 1992 (Gong1992, 1547), Supreme Court Decision 92Da22879 delivered on October 27, 1992 (Gong1992, 3277), Supreme Court Decision 94Da26080 delivered on April 21, 1995 (Gong195Sang, 1932), Supreme Court Decision 96Da31116 delivered on November 15, 196 (Gong197, 1997)

Busan Chemical Co., Ltd. (Attorney Kim Hun-hoon et al., Counsel for the plaintiff-appellant)

Park Pung et al. (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

Free Kim Jong-soo and two others (Attorney Kim Jong-soo, Counsel for the supplementary intervenor-appellant)

Busan High Court Decision 95Na7680 delivered on June 7, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that the plaintiff and the non-party dialogue industry corporation made the provisional registration of this case for the purpose of preserving the right to claim ownership transfer registration based on the sales contract concluded between the plaintiff and the non-party dialogue industry, and that the plaintiff's provisional registration based on the above sales contract is in a simultaneous performance relationship in the case where the above dialogue industry returns the sales price received from the plaintiff while cancelling the contract, and that each party's duty to restore the provisional registration based on the above sales contract is in a simultaneous performance relationship. Thus, it cannot be deemed that the plaintiff and the above dialogue industry have used the provisional registration of this case as a provisional registration for security registration. There is no error in the misapprehension of evidence due to the violation of the rules

On the third ground for appeal

The Provisional Registration Security Act, etc. applies to cases where a promise is made to transfer other property rights with respect to the return of borrowed object (see Supreme Court Decision 92Da22879 delivered on October 27, 1992, Supreme Court Decision 94Da26080 delivered on April 21, 1995, etc.). In the same purport, even if the parties agreed to use the provisional registration of this case as a provisional registration for securing the obligation to return proceeds following the cancellation of a sales contract, the court below's decision that the provisional registration of this case is not applicable to the above act because it cannot be deemed as the completion of a promise for payment in kind with respect to the return of borrowed object, and there is no error in the misapprehension of legal principles as to the scope of application of the Provisional Registration Security Act, etc. such as the theory

On the second ground for appeal

In this paper, the judgment of the court below on the premise that the provisional registration of this case is a provisional registration for security to which the provisional registration of this case is applied is erroneous in the misapprehension of the legal principles as to provisional registration for security and mutual priority between mortgages. However, as long as the judgment of the court below on the first and third points is just, this does not affect the conclusion of the judgment, so the lawsuit on the decision of this case cannot be accepted without the need to examine the legitimacy of the provisional registration. This is also without merit.

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

Justices Ahn Yong-sik (Presiding Justice)