In case where a creditor, after a transfer of other property rights to the existing obligation has been made for the purpose of securing another property rights, transferred the relevant property rights to a third party and made a contract for sale in the name of the third party in order to repay the obligation, whether the creditor has transferred the right to the security agreement along with the claim to the third party (affirmative in principle), and in such case, whether the debtor has consented to the transfer by the preparation of the contract for sale in lots (affirmative)

Article 450(1) of the Civil Act, Articles 31 and 300 of the Civil Execution Act

Supreme Court Decision 92Da33251 Decided July 13, 1993 (Gong1993Ha, 2238), Supreme Court Decision 2006Da79254 Decided May 29, 2008, Supreme Court Decision 2012Da70562 Decided November 29, 2012

Plaintiff (Counterclaim Defendant) (Law Firm Sejong, Attorneys Cho Jong-soo et al., Counsel for the plaintiff-appellant)

Sam Industrial Co., Ltd. ( Changwon Law Firm, Attorneys Yellow-hun et al., Counsel for defendant-appellant)

Lee & Lee Construction Co., Ltd. (Law Firm Changwon, Attorneys Yellow-hun et al., Counsel for the defendant-appellant)

Changwon District Court Decision 2012Na7025, 7032 decided May 15, 2013

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

The grounds of appeal are examined.

1. Where an agreement for transfer of a security to transfer other property rights as a security for an existing obligation has been reached, if a creditor transfers his/her property right to a third party for the repayment of an obligation to a third party who is his/her creditor and requires the third party to prepare a sales contract in the name of the third party, the creditor may be deemed to transfer his/her right to the security agreement along with the debtor's claim to a third party, and it is reasonable to deem that the debtor has consented to the agreement by preparing a sales contract with a third party (see, e.g., Supreme Court Decisions 2006Da79254, May 29, 2008; 2012Da70562, Nov. 29, 2012).

In addition, in case where a provisional disposition creditor transfers a right to claim the transfer of ownership under the security agreement, which is a preserved right, to a third party and obtains the debtor's consent, the third party may claim for the benefit of preservation by the provisional disposition on his own, even if no succeeded execution clause is granted after the execution clause has been executed as the successor of the provisional disposition creditor (see Supreme Court Decision 92Da33251 delivered on July 13, 1993). The provisional disposition creditor who lost the preserved right by such transfer cannot use the provisional disposition for the purpose of preserving the preserved right and other rights.

2. Review of the reasoning of the first instance judgment partially admitted by the lower court, the evidence duly admitted and the record reveals the following facts.

A. (1) On November 30, 2006, the Defendant Co., Ltd. contracted for the new construction work for the new construction work for the new construction work for the new housing (hereinafter “the apartment of this case”) for the new construction work for the new construction project for the new construction of the new housing for the new housing Co., Ltd. (hereinafter “new housing construction”) (hereinafter “new housing”) for the new construction project for the new construction of the new housing for the Co., Ltd. (hereinafter “New Housing”) for the Co., Ltd. (hereinafter “Co., Ltd.”) at the same time, and subcontracted part of the construction work for the construction cost of KRW 1.5 billion to the Sejong Integrated Construction Co., Ltd. (hereinafter “Sean Integrated Construction”) for the construction work cost of KRW 1.5 billion on January 29, 2007.

(2) On August 18, 2007, Defendant item delivered to Nonparty 1 a sales contract of this case, which is indicated as “147,600,000 won for supply, buyer’s new housing construction, and Defendant item,” which was delivered by Defendant item to secure the claim for the above construction cost from the new housing construction, to guarantee the payment of the said subcontract price.

B. (1) On August 28, 2007, the defendant item suspended the new construction of the instant apartment, and filed an application for provisional disposition prohibiting the disposal of the instant apartment No. 902, etc. with the Changwon District Court 2007Kahap454 on August 28, 2007, on the ground that the right to claim for ownership transfer registration and the right to claim for registration of establishment of a mortgage are the right to be preserved.

(2) On September 6, 2007, the Changwon District Court rendered a provisional disposition prohibiting the disposal of the instant apartment Nos. 902 on the ground that the above right to claim for the transfer of ownership and the right to claim for the registration of establishment of a mortgage are the preserved right (hereinafter “the provisional disposition of this case”). Accordingly, on September 7, 2007, the registration of ownership in the name of the new housing construction due to the entrustment of the provisional disposition registration and the registration of the provisional disposition in the name of the Defendant item were completed in sequence.

(3) On September 20, 2007, Defendant item and the new housing construction agreed to waive the new apartment construction of this case and mutually settle it, and that the sales contract for 12 households, including Defendant item unit unit unit unit unit 902 unit, which normally settled by using the sales contract form, shall be recognized and succeeded as it is, and excluded from the legal measures such as future provisional disposition.

(4) On September 21, 2007, the new housing construction was completed the provisional registration of the right to claim ownership transfer (hereinafter “the provisional registration of this case”) with respect to the apartment 902 in the future of Nonparty 2, who was designated by the Sejong General Construction.

C. (1) On October 4, 2007, the new housing construction promised to pay the subcontract price in full upon completion of subcontracted construction to the Sejong General Construction Project, which re-subcontracted the subcontracted construction.

(2) (A) On December 9, 2007, Nonparty 1’s agent for Defendant item, new housing construction, and detailed construction, transferred the apartment construction cost of KRW 602, 702, and 902 (Calculation of KRW 147,600,00 per household) to Sejong General Construction as payment in kind for the obligation of KRW 442,80,000 for the subcontracted construction cost, and Defendant 1 entered into a payment agreement on May 7, 2008 for new housing construction and comprehensive construction cost of KRW 602,702, apartment construction of this case and KRW 90,000 for additional construction cost of KRW 703,700 for additional construction cost of KRW 90,000 for additional construction cost of KRW 90,000 for additional construction cost of KRW 90,000 for additional construction cost of KRW 600,705,000 for additional construction cost of KRW 90,000 for payment in kind.

(3) (A) On May 30, 2008, Nonparty 2 transferred the right under the provisional registration of this case with respect to the instant apartment 902 to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”), and on June 9, 2008, the additional registration prior to the provisional registration was completed in the future of the Plaintiff on June 9, 2008, and (b) on June 9, 2008, the new housing construction completed the principal registration based on the provisional registration of this case with respect to the instant apartment 902 against the Plaintiff on June 9, 2008 in accordance with the payment in substitutes agreement.

D. (1) Meanwhile, on April 16, 2008, Defendant item filed a lawsuit on the merits of the instant provisional disposition (original District Court Decision 2008Gahap2791 (main office)) seeking the implementation of the procedure for the registration of ownership transfer regarding the instant apartment Nos. 902, etc. against Defendant item, and on October 22, 2009, the following adjustments were established between Defendant item pian and the new housing construction.

(A) On September 20, 2007, the new housing construction is to determine the construction cost of KRW 1.6 billion, which was directly executed by the new housing construction after September 20, 2007, among the construction cost of KRW 5.26 billion for Defendant item, and to pay the remainder of KRW 3.66 billion to Defendant item (Paragraph 1).

(B) As to the instant apartment units 602, 702, or 902 that Defendant item transferred by Defendant item to Sejong integrated Construction due to the obligation of Defendant item, the amount of KRW 147,60,000 per household shall be calculated, and as to the instant apartment units, the amount of KRW 147,60,000 per household shall be paid upon confirmation by Defendant item, and as to the deduction from the construction cost to be paid to Defendant item, Defendant item consents (paragraph (5)).

(C) At the same time upon receipt of the conciliation decision, the defendant item transferred all the cancellation documents of the right to the apartment of this case to the new housing construction (Paragraph 6).

(D) waives the remainder of the claim of Defendant item (Paragraph 7).

(2) However, on April 5, 2010, the Defendant item and the new house construction agreement were re-written settlement of construction cost that the ownership of 24 households, including the instant apartment unit 902, preserved by the instant provisional disposition, will substitute for the payment of the unpaid construction cost of KRW 1.952 million by transferring the ownership to the Defendant item, including the instant apartment unit 902, which was preserved by the instant provisional disposition, and that both companies will liquidate their obligations and obligations.

(3) In addition, on April 15, 2010, the new housing construction completed the registration of ownership transfer based on payment in kind on April 5, 2010 with respect to the instant apartment 902 against Defendant item, a provisional disposition creditor, and accordingly, the Plaintiff’s provisional registration and principal registration were entirely cancelled.

(4) After that, on April 15, 2010, Defendant item completed the registration of transfer of ownership on April 6, 2010 with respect to the instant apartment 902, which was based on the instant apartment 902.

3. We examine the above facts in light of the legal principles as seen earlier.

A. In order for the new housing construction to guarantee the payment of the price for the construction to Defendant 1, an agreement that issues the sales contract for the instant apartment under 902 and transfers the ownership of the instant apartment to Defendant 1 constitutes a security agreement for the purpose of securing the payment of the construction cost for the new housing construction, and thus, the right to be preserved in the instant provisional disposition constitutes a right to claim ownership transfer registration under the said security agreement for Defendant 1, i.e., the ownership of the instant apartment.

In addition, in order to guarantee the payment of the subcontract price for the construction for the construction for the construction for the construction for the small construction for the small construction for the small construction for the small construction for the small construction for the small construction for the small construction for the apartment of this case, by issuing the sale contract for the apartment of this case to the small construction for the construction for the new construction for the apartment of this case and transferring the position of the seller, it can be deemed that the defendant's item transferred the right to claim the transfer of ownership under the above transfer contract for the construction for the construction for the new construction for the new construction for the new construction, along with the claim for the construction for the construction for the construction for the new construction for the new construction for the new construction of this case, the debtor's new construction for the construction for the new construction, which is the transferee, according to the settlement agreement dated September 207

Then, the non-party 2 transferred the right to be preserved of the provisional disposition of this case to the plaintiff by transferring the right under the provisional registration of this case. The registration of this case constitutes the registration of the content of realizing the right to be preserved of the provisional disposition of this case, since the new housing construction was completed on June 9, 2008 on the ground that the principal registration of this case was completed based on the provisional registration of this case as to the plaintiff on June 9, 2008 pursuant to the payment agreement between the defendant item, the new housing construction, the payment agreement in kind as of December 9, 2007, the new housing construction, and the payment in kind for the subcontract price as of May 7, 2008 between the housing construction and the Sejong integrated construction.

B. On the other hand, Defendant item lost the right to preserve by transferring the right to claim the transfer of ownership under the above security agreement, which is the right to preserve the provisional disposition of this case, as seen above, and thus, the provisional disposition of this case cannot be used for the purpose of preserving other rights such as accord and satisfaction as of April 5, 2010 between Defendant item and new housing construction.

Therefore, the defendants cannot oppose the plaintiff who completed the principal registration based on the provisional registration of this case in order to realize the right to be preserved for the provisional disposition of this case.

4. Nevertheless, the lower court erred by misapprehending that the ownership transfer registration based on the payment in kind in the name of Defendant item was lawfully completed on the basis of the instant provisional disposition as of April 5, 2010. In so doing, the lower court erred by misapprehending the legal doctrine on the right to be preserved as to the provisional disposition, the transfer thereof, and the usefulness of provisional disposition, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)