Whether a claim seeking recovery of ownership transfer registration made for the purpose of security on the ground of the extinguishment of all the secured obligation or with repayment of the remaining obligation may be deemed as including the purport of seeking recovery on the condition of payment of the remaining secured obligation as revealed in the course of the lawsuit (affirmative)

In a case where a creditor contests that the transfer registration of ownership has been made for the purpose of security while the debtor repaid the whole amount of the secured obligation or where part of the secured obligation remains, the creditor asserts that the transfer registration of ownership has been made for the purpose of security, if the transfer registration of ownership is made for the purpose of security, it shall be interpreted that it includes the purport of seeking the restoration of the transfer registration on condition of payment of the remaining secured obligation as revealed in the course of the lawsuit. In such a case, it is necessary to claim in advance as a lawsuit for future performance.

Articles 188 and 229 of the Civil Procedure Act

Supreme Court Decision 92Da5249 delivered on April 27, 1993 (Gong1993Ha, 1539), Supreme Court Decision 95Da19829 delivered on July 28, 1995 (Gong1995Ha, 2984), Supreme Court Decision 95Da9310 delivered on February 23, 1996 (Gong196Sang, 1051)

[Judgment of the court below]

Defendant (Attorney Dong-sung et al., Counsel for defendant-appellant)

Incheon District Court Decision 95Na3305 delivered on June 28, 1996

The judgment of the court below is reversed, and the case is remanded to Incheon District Court Panel Division.

We examine the grounds of appeal.

(1) According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for the transfer registration of ownership on the above real estate from around 1972 to ○○○, Incheon, for the transfer of ownership for the purpose of this case’s loan and the transfer registration of ownership for the purpose of this case’s loan 131 and operated it by way of filing a report on the opening of the business each time the above investors make repayment of the mining right under the name of 41. The Plaintiff acquired the instant real estate on August 28, 1975 and completed the registration of ownership transfer for the purpose of this case’s loan 10,000 won for the purpose of this case’s loan and the transfer registration for the purpose of this case’s loan 10,000 won for the purpose of this case’s loan 40,000 won for the purpose of this case’s loan and interest transfer registration for the purpose of this case’s loan 1 to Nonparty 4, who had been held in the name of △△, 1986.

(2) However, in a case where the obligor claims the recovery of ownership transfer registration made for the purpose of security in repayment and repayment with the view that a part of the secured obligation remains, and the obligee claims that the ownership transfer registration was made for the purpose of security, if the above transfer registration was made for the purpose of security, it shall be interpreted that the obligor's claim includes the purport of seeking the recovery of the ownership transfer registration under the condition that the remaining obligation is paid for the secured obligation as revealed in the course of the lawsuit, and in such a case, it is necessary to claim in advance as a lawsuit for future performance (see Supreme Court Decisions 92Da5249, Apr. 27, 1993; 95Da19829, Jul. 28, 1995; 95Da9310, Feb. 23, 1996).

However, as seen in the judgment of the court below, the plaintiff alleged that the real estate in this case was offered as a security for transfer, and if the secured debt is remaining, the defendant purchased the real estate in this case. If it is acknowledged that the registration of transfer of ownership in the name of the defendant with respect to the real estate in this case was made for the purpose of securing claims, the purpose of the registration, existence of the secured obligation, and the amount thereof constitutes dispute. Thus, if the real estate in this case was offered as a security for transfer, it is reasonable to interpret that the plaintiff's assertion is included in the purport of seeking the above registration of transfer of ownership after discharging the remaining debt revealed in the course of the lawsuit, and it is also necessary to claim in advance as a lawsuit for future performance. The court below should have deliberated and decided the amount of the secured debt in this case and determined what scope of the plaintiff's claim within the scope of the remaining debt after determining the amount of the secured debt. However, the court below erred in the misapprehension of legal principles as to the measure to dismiss the plaintiff's claim for transfer of ownership for the same reason as in its holding.

(3) Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, the judgment below is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)