A. Whether it is necessary to request in advance the cancellation of provisional registration on the condition that the secured obligation be repaid where the creditor would not be expected to cooperate in the cancellation of provisional registration made for the purpose of securing the obligation even if the debtor pays the secured obligation (affirmative)

(b) The case holding that if a creditor has asserted that a provisional registration has been made for the purpose of securing a claim since the first instance trial, and there is a dispute over the scope of principal and interest of such obligation, the debtor needs to claim in advance the cancellation of the provisional registration on the condition that he shall pay the principal and interest of

A. Where a provisional registration has been made with respect to real estate for the purpose of securing a claim, the obligor is entitled to seek the cancellation of the provisional registration only if he/she first pays his/her obligation. However, since the obligee asserts that the provisional registration is the object of securing a obligation, or claims the amount of the secured obligation, it is necessary to claim in advance the cancellation of the provisional registration in cases where the obligee does not expect that even if he/she pays his/her obligation, he/she will cooperate with the cancellation of the provisional registration.

B. The case holding that even if the provisional registration was made for the purpose of security interest, it has been argued that the provisional registration was made for the purpose of security interest, and that the provisional registration was made for the purpose of security interest by asserting that there was a interest agreement, and that there was a dispute as to the scope of principal and interest on the debt, if there was a dispute as to the scope of principal and interest on the grounds that the creditor asserted that there had been no interest agreement on the said secured debt, and that the creditor has to claim in advance the cancellation of the provisional registration on the condition that the principal and interest should be repaid on the condition that the principal and interest should be repaid on the condition that the principal and interest on the debt should be repaid, without selling it again to the debtor and selling it in the name of the creditor.

Article 229 of the Civil Procedure Act

A. Supreme Court Decision 89Meu1384 decided May 25, 1990 (Gong1990, 1359) (Gong1359), 90Meu6825, 6832 decided July 10, 1990 (Gong1990, 1691) (Gong1691) 91Da35175 decided Jan. 21, 1992 (Gong192,894)

[Plaintiff-Counterclaim Defendant] Plaintiff (Attorney Choi Jong-ho, Counsel for plaintiff-appellant)

Defendant Lessee (Counterclaim Plaintiff) and one other Defendants (Attorney Lee Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 90Na3906, 39073 decided Feb. 28, 1992

The counterclaim part of the judgment of the court below shall be reversed and remanded to Seoul High Court.

All appeals filed by the Defendant-Counterclaim Plaintiff against the principal lawsuit are dismissed.

The costs of appeal dismissed are assessed against the Defendant (Counterclaim Plaintiff).

1. As to the grounds of appeal (No. 1) as to the principal lawsuit

The court below determined that the provisional registration of this case in the Plaintiff’s name was completed on October 28, 1981 between the Plaintiff and the Defendant (Counterclaim Plaintiff; hereinafter only the Defendant), and determined that the amount of debt to Nonparty 1, who was the previous owner of the real estate of this case, was KRW 41,00,000,000, and the Defendants agreed to pay KRW 31,00,000 among them to the Plaintiff by two installments until December 15 of the same year, and that the Defendants were not obliged to pay KRW 28,00,00,000 to the Plaintiff for the above provisional registration, and that the Defendants were not obliged to pay KRW 28,00,000,00 to the Plaintiff on the ground that the Defendants’ assertion that the above provisional registration was made on July 5, 1982, and that it was necessary for Nonparty 1 to establish ownership transfer registration in the name of Nonparty 1, who was merely the Plaintiff’s claim for provisional registration under the name of the court below for the aforementioned provisional registration.

2. As to the ground of appeal as to the counterclaim (No. 2)

According to the reasoning of the judgment below, the court below rejected the above provisional registration on the condition that the defendant's repayment of the secured debt is merely part of the plaintiff's repayment, and it is not necessary to request in advance for the cancellation of the above provisional registration on the condition that the defendant's repayment of the secured debt was made on the condition that the defendant's repayment of the secured debt was made on the part of the non-party 1's debt against the plaintiff, which the defendant accepted. Thus, the plaintiff was paid the above amount of 28,000,000 won and delayed payment damages therefor, and then the plaintiff is obligated to execute the procedure for cancellation registration of the provisional registration of this case."

However, when a provisional registration has been made with respect to real estate for the purpose of collateral security, the obligor can seek cancellation of the provisional registration only if he/she is required to repay his/her obligation first; however, the obligee asserts that the provisional registration became the object of collateral security, and thus, if the obligee does not expect that the obligee will cooperate with the cancellation of the provisional registration even if he/she pays his/her obligation, it is necessary to claim in advance the cancellation of the provisional registration under the condition that the secured obligation will be repaid (see, e.g., Supreme Court Decision 80Da482, May 27, 1980; 80Da2270, Sept. 25, 1990; 89Da1384, May 25, 1990; 91Da35175, Jan. 21, 1992). According to the records, the Plaintiff, as a result of the first instance trial, was unable to assert that the Defendants would have purchased the real estate under the name of the Defendants for the purpose of collateral security right to be redeemed.

Therefore, the court below held that the cancellation of the provisional registration of this case is not necessary because the defendants sought the cancellation of the provisional registration of this case on condition that they fully repay the secured obligation without paying the secured obligation at all, and therefore, it is erroneous in the misapprehension of legal principles as to the requirements of provisional registration or future performance for the security purpose, which was made for the above purpose of the provisional registration, and thus, it has affected the conclusion of the judgment. Therefore

3. Therefore, of the judgment of the court below, the part of the counterclaim shall be reversed and remanded to the court below. The defendants' appeal as to the main lawsuit shall be dismissed, and the costs of appeal as to the main lawsuit shall be assessed against the defendants who have lost. It is so decided as per Disposition by the assent of

Justices Kim Sang-won (Presiding Justice)