Where cancellation of ownership transfer registration is allowed on the condition of the repayment of debts;

The cancellation of the ownership transfer registration made in the name of the creditor for the purpose of credit security can be claimed first by the debtor, but if it is deemed necessary to request the cancellation of the registration in advance, it shall be deemed that the lawsuit for future payment under the condition of advance payment along with the confirmation of the obligation, is permitted. Therefore, it is difficult to expect the defendant's cooperation in the cancellation of the registration even if the obligation is satisfied, because there is a dispute over the obligation of the plaintiff's principal and it is difficult to expect the defendant's cooperation in the cancellation of the registration.

Article 229 of the Civil Procedure Act

Supreme Court Decision 68Da363 Decided July 23, 1968

Limited Partnership Company Central Public Official, Inc.

Defendant

Seoul Central District Court (65 A1146) of the first instance trial (Supreme Court Decision 65Do1146)

The original judgment shall be revoked.

It is confirmed that there is no claim of KRW 620,751 out of KRW 830,000,000 for the defendant's payment date against the plaintiff on October 31, 1965.

If the defendant pays to the defendant the amount equivalent to 209,249 won and the 20% annual interest rate from May 6, 1965 to June 25 of the same year the amount equivalent to 269,249, and the amount equivalent to 260% annual interest rate from May 6, 1965 to June 25 of the same year, the defendant will implement the procedure for registration of cancellation of ownership transfer on the ground of sale on the 5th day of the same month, which was made by the receipt of the registration office of the Seoul Civil District Court, Youngpo District Court No. 9867, May 6, 1965.

The plaintiff's remaining claims are dismissed.

All the costs of lawsuit of both the first and second instances shall be divided into three parts, one of which shall be borne by the plaintiff, and the other two shall be borne by the defendant.

The plaintiff's attorney shall revoke the original judgment.

It is confirmed that there is no claim of KRW 830,000 on October 31, 1965 against the defendant's payment date against the plaintiff.

The defendant will implement the procedure to cancel the registration of transfer of ownership on the ground that the registration of transfer of ownership was made on May 6, 1965 with respect to the real estate in the attached list to the plaintiff on May 6, 1965 by the Yeongdeungpopo District Court, Youngpo District Court No. 9867.

The costs of the lawsuit shall be borne by the defendant in both the first and second trials, and in addition to the purport of the claim in the trial, the defendant receives 182,926 won from the plaintiff and implements the procedure for the cancellation of the ownership transfer registration that has been completed, as stated above, to the plaintiff.

The first and second trials filed a judgment that all the costs of lawsuit shall be borne by the defendant.

(1) First, we examine the part of the Plaintiff’s claim for confirmation of existence of claims.

On January 25, 1965, comprehensively taking account of the whole purport of the pleadings by Non-Party 1 and Non-Party 2’s testimony of the court below, the plaintiff is used at 5% interest rate per annum between the plaintiff and the defendant on January 25, 1965. However, a monetary loan contract was concluded to deduct the interest rate of 15% per annum from the principal, and the plaintiff is established to deduct in advance the interest rate of 450,000, 400,000 Doumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumum.

However, the above monetary loan for consumption among the plaintiff and the defendant is a prior interest and deduction exceeding the interest rate under the Interest Limitation Act, and thus it should be reviewed. However, in such a case, the monetary loan for consumption was established as to the amount of 1,00,000 won which is the contractual loan. However, since the interest rate of one-month which is deducted from the above amount exceeds the interest rate under the Interest Limitation Act, it is reasonable to view the above prior interest and deduction amount exceeding the interest amount calculated by the rate of 20,000 won which is the interest rate under the Interest Limitation Act, which is the interest rate of 850,000 won which is the amount actually issued, as it exceeds the interest rate under the Interest Limitation Act.

Therefore, if the plaintiff calculates the original amount to be paid to the defendant at the time of February 24, 1965, which is the first month from the date of the establishment of the monetary lending of this case, the amount to be paid to the defendant is 862,790 won (the number below the original amount in the coefficient was written off; hereinafter the same shall apply).

The plaintiff alleged that 200,000 won was repaid over four times until February 20, 1965, but the testimony portion of the non-party 1 and the non-party 2 of the political party witness non-party 2, as shown above, cannot be easily believed and there is no other evidence to support this point. Thus, the plaintiff's above assertion cannot be accepted.

However, on April 9, 1965, the fact that the plaintiff paid a sum of KRW 651,344 to the defendant is the person of the defendant. As to the exercise of the right to appropriation of performance, the part of the testimony of the non-party 1 by the non-party 1 of the court below is difficult to believe it and no other evidence exists to support it, the above amount of payment shall first be appropriated for the interest accrued until the date of repayment by the statutory appropriation method, and the remainder shall be appropriated for the repayment of the principal amount of KRW 862,790.

Therefore, the interest calculated according to the rate of 20% per annum from February 25, 1965 to April 9 of the same year, which occurred from February 25, 1965 for the above principal amounting to 862,790 won, shall be 22,043 won per coefficient, and the above repayment amount shall first be appropriated for the repayment of the above interest.

As such, the amount of the plaintiff's above repayment to the defendant at the time of April 9, 1965 as a result of the legal appropriation of the plaintiff's above repayment would be 23,921 won per coefficient.

In addition, according to the statement of Eul evidence No. 1 (which cannot be recognized that the preparation of the same evidence was caused by the defendant's coercion) without dispute in the formation, the plaintiff re-verificationed the loan amount of 830,000 won to the defendant on May 5, 1965, and agreed to pay it until October 31 of the same year. In addition, in full view of the whole purport of the pleading, the above agreement is not difficult to see that the interest calculated at the rate of 15% per month, which is the interest rate agreed upon between the plaintiff and the defendant, is included in the principal (excluding 32,00 won, which is claimed to be included in the above money, by the defendant and 32,00 won).

However, a contract which adds interest exceeding the interest rate under the Interest Limitation Act to the principal shall be null and void. As such, the above contract shall be concluded from April 9, 1965 to May 5 of the same year, 200 won which is the interest rate of 20 percent per annum, which is within the scope of the interest rate under the Interest Limitation Act, as of May 9, 1965. The above 200 won shall be deducted from the above 603,249 won and the above 237,249 won which shall be added to the above 90,00 won which shall be deducted from the above 60,00 won to the above 60,00 won which shall be deducted from the above 60,000 won, and the remaining amount shall be valid within the limit of 269,249,000 won as of May 5, 1965, the plaintiff shall not be deemed to have reached the above 160,000 won by deducting the above amount from the above 160,05,065,000.

Therefore, it is clear that there is no claim of KRW 620,751 from the defendant's claim of KRW 830,000, which the plaintiff paid to the defendant by October 31, 1965, which is 209,249, and therefore, there is no claim of KRW 620,751, which remains after deducting the above amount of KRW 209,249, out of the defendant's claim of KRW 830,000 as stated by the plaintiff. Thus, the plaintiff's claim of confirmation of existence of a claim of KRW 620,751, out of the amount of claim of KRW 830,00 as of October 31, 1965 against the plaintiff, is reasonable to the extent of seeking confirmation of

(2) We examine the following part of the Plaintiff’s claim for cancellation of ownership transfer registration.

There is no dispute between the parties that the registration of transfer of ownership in the name of the defendant has been made as stated in the purport of the claim and appeal with respect to the real estate originally used in the attached list which is owned by the plaintiff.

The plaintiff asserts as follows as the grounds for invalidation of the above registration.

In other words, as above, the plaintiff borrowed 850,00 won from the defendant and delivered 50,000 won checks at par value to the defendant as collateral. However, there was a failure to lend 650,000 won which the defendant promised to lend to the plaintiff more to the plaintiff in the future due to the relationship that the defendant did not lend 650,000 won to the plaintiff. However, even though the above loan was fully repaid, the defendant asserted that the defendant issued a document required for the transfer registration and the registration of the transfer under the name of the defendant and the registration of the ownership transfer of this case without the defendant's coercion, and the plaintiff asserted that the above loan was revoked.

However, as mentioned in the above (1) above, the plaintiff is not yet fully responsible for the defendant's obligations, and the legal act of the plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's plaintiff's testimony is caused by the defendant's coercion, and there is no other evidence to support this issue. On the other hand, according to the above Eul's evidence No. 1, it can be known that the registration of ownership of the defendant's name of this case was made lawfully for the plaintiff's claim security against the plaintiff. In this point, the plaintiff's above assertion cannot be accepted.

Therefore, the plaintiff's claim seeking cancellation on the ground that the transfer registration of ownership in the name of the defendant was made by a defective legal act caused by the defendant's coercion is without merit.

(3) Finally, we examine the conjunctive claims added by the Plaintiff at the trial.

As shown in the above (2), it is evident that the registration of transfer of ownership under the name of the defendant for the real estate of this case has been made in order to secure the defendant's claim against the plaintiff, and as stated in the above (1) as of June 25, 1965, the plaintiff's obligation to the defendant still remains in 209,249 won as of June 25, 1965, and it is obvious that the above obligation to the defendant still remains in 209,249 won as of May 5, 1965, which was 269,249 won as of June 25, 1965, was not obtained a bank loan of 50,000 won as of June 25, 1965, it is also stated in the above (1).

However, in the instant case, the Plaintiff asserted that the Defendant’s obligation against the Defendant is KRW 182,962, and urged the Defendant to implement the procedure for cancellation of ownership transfer registration in the name of the Defendant on the instant real estate when the said amount is paid from the Plaintiff.

Of course, the cancellation of the ownership transfer registration made in the name of the creditor for the purpose of collateral security can be claimed first by the debtor, but if it is deemed necessary to request the cancellation of the registration in advance, it shall be deemed that the lawsuit for future payment is permitted as the condition of advance payment along with the confirmation of the obligation. Thus, in this case where there is a dispute over the obligation of the plaintiff's principal and it is difficult to expect the defendant's cooperation in cancelling the registration even if the obligation is repaid, even if the obligation is repaid, it is difficult to expect the defendant's cooperation. Thus, in accordance with the purport of the pleading, it is necessary to correct the cancellation of the registration on the condition of the payment in advance with the confirmation of the obligation amount between the parties and the confirmation of the obligation amount

In addition, it is not possible to determine the amount of debt payable by the plaintiff below the amount of the plaintiff's principal, but it is possible to determine the amount of debt exceeding the amount of the plaintiff's principal.

Therefore, as revealed by the above recognition, the defendant is obligated to cancel the registration of transfer of ownership of the defendant's name, which was completed with respect to the real estate of this case, to the extent that it is reasonable for the plaintiff to claim the payment of the above recognized amount, and the remainder is without merit, for the plaintiff's claim to the extent that it is reasonable for the plaintiff to claim the payment of the above recognized amount on the condition of the above recognized amount.

(4) However, since the original judgment differs from the party members regarding the remainder of the claim except for the conjunctive claim added by the plaintiff at the trial, the original judgment is revoked, and it is so decided as per Disposition by applying the main text of Article 95 and Article 92 of the Civil Procedure Act to the burden of litigation costs.

[Attachment List omitted]

Judges Kim Ha-ju (Presiding Judge)