In settling accounts for the exercise of the security right by a person with a provisional registration security right, the validity of the market price of the secured real estate to be owned by him/her.

In the course of settling accounts for the exercise of the security interest, if a person with a provisional registration deposits an amount equivalent to 1/15 of the amount to be settled, it cannot be a valid settlement under the good faith principle. Therefore, even if the registration of transfer of ownership is completed before the person with a security interest, the ownership of the real estate is attributed to the person with a security interest.

Articles 2 and 372 of the Civil Act

Supreme Court Decision 63Da76 delivered on March 28, 1963 (Supreme Court Decision 7542 delivered on July 19, 1963; Supreme Court Decision 11NuDo224 delivered on July 1, 200; Decision 214(4)316 delivered on March 28

Plaintiff

Defendant 1 and one other

Seoul Central District Court (71 Gohap4657) in the first instance trial

The original judgment shall be modified as follows:

1. On November 30, 1970, Defendant 1 performed the provisional registration of the right to claim transfer of ownership in accordance with the trade reservation No. 31548, which was received on November 30, 1970, and the procedure for registration cancellation of transfer of ownership registration No. 5741, which was received on March 12, 1971.

2. Defendant 2 ordered the Plaintiff to list the buildings listed in the attached list.

3. The defendant et al. shall jointly and severally pay to the plaintiff the amount equivalent to 52,500 won per month from July 16, 1974 to the time when ordering the above 2-mentioned buildings.

4. The plaintiff's remaining claims are dismissed.

5. The costs of the lawsuit shall be five equal parts through the first and second trials, and one of them shall be borne by the plaintiff and the remainder by the defendants.

The original judgment is revoked. The purport of the same purport as the Disposition Nos. 1 and (2) and the plaintiff jointly and severally pay to the defendants an amount calculated by the ratio of KRW 1,750 per day from November 24, 1973 to the time when the building recorded in the attached list is ordered. The costs of lawsuit shall be borne by the defendants in both the first and second instances and a provisional execution declaration.

1. In light of the above evidence No. 1, No. 2, and No. 1,2 (a copy of the register), and No. 1, No. 3 to 7 of the above real estate for which the above real estate was not disputed, and if all of the entries of No. 1, No. 3 (a settlement protocol), the appraisal result of Non-Party 1, and the purport of the party’s pleading were to be verified by Non-Party 1 and Non-Party 1, it is difficult for the plaintiff to accept the above provisional registration No. 1, No. 3,50,000 for the above real estate for the purpose of the above 1, No. 197 and No. 1, No. 31548, Dec. 7, 1970 and the above provisional registration No. 1, No. 31970, Nov. 30, 1970 for the purpose of the above provisional registration No. 1, 207.

Therefore, we examine whether the above amount deposited by the Plaintiff is reasonable as the Plaintiff’s principal debt repayment amount (which includes the Plaintiff’s principal loan and interest thereon, and the aforementioned expenses agreed to be borne by the Plaintiff).

(1) Reconciliation prior to filing a lawsuit

The amounts agreed to be paid in March 7, 1971 constitute KRW 3,920,000 shall be as seen earlier.

(2) Overdue interest for the borrower;

As seen in the above, the agreement on the excess portion is null and void as the interest rate of 4% per month exceeds the interest rate of the Interest Limitation Act, from March 7, 1971 to August 2, 1972, the interest rate of 36% per annum under the Interest Limitation Act, which was in force at the time from August 3, 1972, shall be KRW 1,79,000 if the interest is calculated in accordance with the interest rate of 36% per annum, which is the interest rate of the Interest Limitation Act, and the interest rate of 25% per annum, which is the interest rate of the Interest Limitation Act, which was in force at the time from August 3, 1972 to July 16, 1974.

(3) If the contents of Eul evidence Nos. 7 to 9 (certificate, certificate, receipt) and Eul evidence Nos. 6 (Receipt) which are acknowledged to have been genuine by the testimony of the non-party 3 at the trial witness non-party 3, the non-party 3, the witness non-party 4 at the trial witness at the trial and the whole purport of the parties' arguments are all together together, 75,000 won with the cost of transfer registration, registration tax, etc., 140,167 won, 75,000 won with the cost of surrender execution, and the property tax on the above real estate paid by the defendant 1 from the 1971 to the 1973rd day from the 1973rd day to the 1973rd day from the 192,580 won (certificate, 28,260 won, 1972 to the 35,6460, 1973Do467, 197).

2. The defendants' legal representative did not pay KRW 3,920,00,00, which is the amount settled by the plaintiff until March 7, 1971, which is 3,90,000, which is the date on which the payment was made, and the defendant 1 started to execute the security right to the real estate and executed the order on March 10, 1971. After completing the registration of transfer of ownership to the original real estate on July 9 of the same year, the plaintiff evaluated the market price of the above real estate as KRW 8,90,00,000 and evaluated the above principal and interest at KRW 4,480,00,000, and 2,000,000,0000,000, which is 1960,0000,000,000,000,000 won which is the above real estate on April 6, 1968.

However, the so-called provisional registration security right holder evaluated the market price of the secured real estate and evaluated the market price of the secured real estate as the reasonable price, and then deducted the amount of the secured debt and the expenses to be borne by the debtor at that market price, and if there is any balance, it should undergo the procedure of returning or depositing the secured debt to the debtor (the person who created the security right) to repay it, and according to the appraisal result of the non-party 5 (it was appraised that the market price was not changed until May 17, 1972 but it was appraised that there was no change in the market price until May 17, 1972) of the real estate in this case, it is difficult to believe that the appraisal result of the non-party 6 of the original trial appraiser was 16,460,00, and against this, the appraisal result of the above appraisal result of the non-party 1 of the original trial appraiser is difficult to believe that the appraisal result of the above appraisal result was inconsistent with the ordinary number of the actual building, and thus, the plaintiff's debt settlement should be reviewed from the above.

(1) The facts that the property tax on the above real estate paid by the 1971do governor was about KRW 75,00 and KRW 20,226 as the expenses for the registration of ownership and the surrenderation for the exercise of security rights, public charges, the expenses for the registration of ownership transfer, and the registration tax, etc. are about KRW 140,167.

(2) Reconciliation prior to filing a lawsuit

The facts as seen earlier are that the amount agreed to be paid in March 7, 1971 constitutes KRW 3,920,000.

(3) The interest rate of the borrower (one month from March 8, 1971 to July 8, 1971) is 3,500,000 won, and the agreed interest rate is 4% per month as seen earlier. Since the interest rate of 4% per month exceeds 3,65% per annum, which is the interest rate under the Interest Limitation Act, which was in force at the time of enforcement, so the interest rate of 4% per annum is 429,33 won (3,500,000 x 365 x 4/123,50 won) shall be calculated according to the above limited interest rate.

(4) Claim secured by a third party

When both the testimony of the non-party 3 and the whole purport of the party's argument, it can be recognized that the security right of bank bonds amounting to 2,00,000,000 won has been established on the real estate in this case.

Therefore, as of July 9, 1971, the principal and interest of the Plaintiff’s principal obligation as of July 9, 1971, and the expenses to be deducted from the Plaintiff’s principal obligation are KRW 6,584,726. Thus, if the amount is deducted from KRW 16,460,00 at the market price of the instant real estate, the remainder would be KRW 9,875,274.

The defendants' attorney argues that the interest should be counted in the interest portion first, but there is no evidence to see that there has been such an agreement. The above argument is correct, second, the plaintiff agreed to sell the real estate at the price after deducting 20 percent from the market price of the real estate as to April 6, 1968. The defendant 1 argued that the agreement between the plaintiff and the defendant 2 should be deducted from the market price under the above agreement, since the defendant 2's right to the real estate is all taken over, the above agreement is reached between the plaintiff and the defendant 2, and even if the defendant 1 acquired the right of the defendant 2, it is nothing more than the agreement between the plaintiff and the defendant 2 about the purchase of the real estate, and it does not affect the effect of the above agreement even if the defendant 1 acquired the right to the real estate in this case by exercising the security right to the real estate and assessed it, and it does not affect the debt settlement even if it is done.

Therefore, as of July 9, 1971, the amount to be settled to the Plaintiff by Defendant 1 by exercising the security right to this case is KRW 9,875,274. It can be recognized that Defendant 1 unilaterally deposited KRW 640,000,000, which is not higher than 15 minutes. In light of the amount to be settled, it is difficult to conclude that the settlement for the execution of the security right is valid in light of the good faith principle, because the amount to be settled is too short, in the case of the execution of the security right by using the method of assessing the market price of the secured real estate and settling the amount in excess of the claim to the obligor, the time when the ownership is finally and conclusively reverted to the secured party is completed by deducting the secured claim from the amount of appraisal at the market price of the secured real estate price, and if there is a balance after deducting the secured claim from the amount to be paid to the secured party, it shall be deemed that the ownership was due to the Plaintiff’s deposit or deposit of the secured real estate with the secured party.

3. Therefore, since Defendant 1’s security right on this case’s real estate has become extinct due to the Plaintiff’s deposit of principal and interest on July 16, 1974 and the principal registration on this case’s real estate and the cancellation registration on this case’s real estate, Defendant 1 is obligated to order the Plaintiff to use this case’s real estate as stated above, and Defendant 2 has a duty to deliver this case’s real estate to the Plaintiff. The Defendants were aware of the fact that Defendant 1’s security right on this case’s real estate was extinguished due to the Plaintiff’s deposit in the court on July 16, 1974. Since Defendant 1 did not express to the Plaintiff and continued possession (it is deemed that Defendant 1 occupies it indirectly through Defendant 2, which he occupied, at least 7.5 square meters after July 16, 1974, it cannot be deemed that Defendant 2 was jointly and severally liable to compensate the Plaintiff for damages from the appraised value of the real estate under this case’s real estate under this case’s real name.

4. Accordingly, Defendant 1 shall cancel the provisional registration and the registration of transfer of ownership as in front of the real estate as to the Plaintiff, and Defendant 2 shall order the Plaintiff to present this building, and the Defendants shall jointly and severally be liable to pay to the Plaintiff the amount equivalent to 52,500 won per month from July 16, 1974 to the time when the above building is ordered. Thus, the Plaintiff’s claim for the principal lawsuit is justified within the scope of the above recognition, and there is no reason to accept the remainder, and it shall be dismissed. Since the original judgment with different conclusions is unfair, the part of the original judgment is modified as in the disposition, and the Civil Procedure Act shall be applied with respect to the burden of litigation costs, and the provisional execution shall be deemed unnecessary, and it shall be decided as per Disposition with the assent of all participating Justices.

Judges Jeon Soo-hun (Presiding Judge)