Determination on whether payment in kind is made or not, and the standard time of such determination

Whether the reservation for payment in kind is null and void shall be determined by comparing the value of the substitute at the time of the reservation with the principal and interest from the time of the repayment of the borrowed object, and it shall not be combined with

Article 607 of the Civil Act, Article 608 of the Civil Act

Plaintiff

Defendant

Daegu District Court Decision 65Na166 delivered on March 2, 1966

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal by the plaintiff's agent are examined.

However, in the case where both the principal case mentioned in the theory of lawsuit is combined with the so-called weak meaning of collateral security contract and the promise for payment in kind, even if the pre-contract for payment in kind is null and void in violation of Articles 607 and 608 of the Civil Act, if the pre-contract for payment in kind can be deemed to have been passed through the creditor and the ownership transfer registration pursuant to the contract for collateral security, the debtor cannot file a claim for cancellation of the ownership transfer registration before he pays the principal and interest, and as such, until he pays the principal and interest, the ownership transfer registration in the name of the creditor is fully effective in external relations. In this case, as determined by the court below, the pre-contract for the collateral security contract and the accord for payment in kind was made, and the pre-contract for payment in kind is null and void, but it is different from the case where the debtor did not pay the principal, and thus, it cannot be admitted that the original judgment is in violation of the previous original decision.

In addition, according to Articles 607 and 608 of the Civil Act, whether the reservation for payment in kind is invalid or not, the comparison of the price of the substitute at the time of the promise for payment in kind and the principal and interest until the due date for payment in kind is not based on the total amount of damages for delay after the due date. Thus, the reservation for payment in kind cannot be deemed to be disadvantageous to the borrower, and as long as the reservation for payment in kind is null and void, the Defendant agreed to establish a collateral security with Nonparty 1 and Nonparty 2, and it cannot be deemed that the ownership transfer registration for the principal case is valid or valid. Thus, the Defendant did not pay the debt to the above Nonparty, etc. and its registration is not valid.

In addition, the fact that there has been a final and conclusive judgment on the lawsuit is not a new fact that the plaintiff asserted and did not receive a judgment at the original court, and the original judgment cannot be criticized for this fact, and so long as the registration of ownership transfer in the name of the non-party 1 is null and void, the plaintiff's non-party et al. believed and purchased the ownership of the building that the plaintiff's non-party et al. had the ownership, and it is not an acquisition of ownership

Therefore, it is so decided as per Disposition by the assent of all participating judges under Articles 400, 395, 384, and 89 of the Civil Procedure Act.

[Judgment of the Supreme Court (Presiding Judge) Mag-Jak Park Mag-gu