Security and legal form of property right transfer;

In case where a property right is transferred for the purpose of securing a claim, there is a case where a property right is transferred on a trust basis by maintaining a legal form or a claim, or there is a case where a property right is transferred due to a true sale and purchase, and the obligation is not remaining after examining the price and a debt, and thus, the legal effect is reached. Thus, in the case where a contract for the transfer of property right is entered into as security of a claim, it shall be determined by investigating the intent of the parties, and it shall not be deemed that it belongs to the latter merely because the transfer of the property was made

Article 579 of the Civil Act

Lee Chang-soo et al., Counsel for the plaintiff-appellant

Attorney Min-sik, Counsel for the defendant-appellant

Seoul District Court of the first instance, Seoul High Court of the second instance, 53 civilian 110 decided June 21, 1964

We reverse the original judgment.

The case is remanded to Seoul High Court.

The ground of appeal No. 1 in the judgment of the court below on the ground that the original judgment sold the real estate owned by the plaintiff ... to the defendant ...., and since the plaintiff sold the real estate to the plaintiff ....., the plaintiff ...., and the plaintiff ..., had determined that the plaintiff passed the registration of transfer of ownership with the plaintiff ...." However, according to the factual statement between the parties in the judgment below, the plaintiff's answer, as alleged in the plaintiff's assertion and the tenant's answer, was several times at the time of 9.28 several times, and the defendant gave the plaintiff's consent to dispose of the real estate and pay his debts at the time of appropriate time (the part for the first instance judgment), if the defendant 10,000 won traded with the plaintiff ., the 10,000 won .,00 won ., which was not the purchase price for the real estate, and it is no longer necessary to dispute with the plaintiff ., and it is not a confession but a confession between the plaintiff 1 and the plaintiff.

The second point is that the original judgment is not the sale by the terms and conditions of transfer, but the sale by the terms and conditions of transfer. However, since the sale by the terms and conditions of transfer belongs to the category of the transfer by transfer, there is no practical benefit to distinguish the difference. Therefore, although the second point is recognized as groundless, it is not enough to leave the nature of the transfer by the reason that the transfer by transfer is an essential condition, and at the same time, the ownership of the security is not transferred to the secured party at the time when the contract of transfer by transfer is formed, but at the time when the debtor fails to perform the conditions attached to the transfer by transfer by transfer, the ownership of the object is transferred to the purchaser at the same time as the sale by the sale by the deposit within a specific period, and it is impossible for the plaintiff to exercise the rights by paying the ownership of the object to the purchaser at the same time, and therefore, the sale by the transfer by transfer and the sale by the terms and conditions of transfer belongs to the category of transfer by transfer by transfer by transfer, it is not possible to exercise the rights by the defendant for 2-year period of transfer by the original judgment.

Although the judgment of the court below stated that the plaintiff sold real estate after September 28, 200, and there was no proof to the effect that there was an agreement between the original defendant to adjust the plaintiff's obligations to the defendant. Therefore, the plaintiff's argument was groundless, but according to the statement of facts in the judgment of the court of first instance cited by the court below, the court below acknowledged the plaintiff's prior consent to dispose of the real estate at the time of several times at 9.28 times at the court of first instance, and the defendant confirmed that the defendant sold the real estate at the time of their return to Seoul, and that the defendant would refund the real estate to the original defendant if the plaintiff is the principal and interest of the real estate at the time of their return to Seoul, even though it appears to be the fact that the defendant would return the real estate to the original defendant, and even if it appears to be the fact that the defendant's reply was made at the same time after September 28, 200, the court below did not err in finding that the defendant's first instance court's confession and the defendant's reasons.

In a case where a property right is transferred for the purpose of the security of another claim, the legal form of the original judgment or the trust property right is transferred for the purpose of the security of the claim. It is reasonable that the obligee cannot use the ownership transferred for any purpose other than the security. Therefore, if the obligor has discharged the obligation, the obligee shall return the ownership of the property. If the obligee disposes of the property due to delay in the performance of the obligation, the obligee may, if he did not dispose of the property, return the principal and interest to the obligor, and demand the return of the property right while the obligee did not dispose of the property at the expiration of the maturity period, and if so, the obligee would not exercise the right of consideration within the prescribed time limit, so long as the ownership of the property right is transferred due to the sale and purchase of the property right and then the obligation of the Plaintiff would be no longer effective for the first time after the sale and purchase of the property right, then the lower court should have determined the sale and purchase of the property right in the form of a first three-month agreement with the obligee.

Therefore, it is so decided as per Disposition.

Justices Kim Dong-dong (Presiding Justice) Acting Justice Kim Jae-ho on the present allocation of Kim Jong-dong (Presiding Justice)