In cases where it falls short of the full repayment of the principal registration and the claim for cancellation of the principal registration by asserting that the principal registration was repaid, whether the above claim includes the purport of seeking future performance

If, by asserting that the principal has repaid the total amount of the secured obligation, the principal has filed a claim for the implementation of the procedures for provisional registration and for the cancellation registration of ownership transfer, but the deposit for repayment is found to have any remaining obligation without extinguishing the total amount of the obligation, it is reasonable to interpret that the outstanding remainder in the claim is included in the purport that he/she shall repay the finalized remainder and seek the cancellation of the above registration. This is also recognized as a future lawsuit.

Article 229 of the Civil Procedure Act

Supreme Court Decision 80Da2270 Decided September 22, 1981, 81Da548 Decided May 10, 1983

Plaintiff 1 et al., Counsel for the plaintiff-appellant

Defendant Kim Young-chul, Counsel for defendant-appellant

Seoul High Court Decision 86Na407 delivered on September 11, 1986

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the assertion that there is an error in the rules of evidence, incomplete hearing, or lack of reasons, among the grounds for appeal:

Based on its evidence, the court below acknowledged that the defendant and the non-party 1 of the first instance trial agreed to lend 30,00,000 won to the plaintiff on July 7, 1979 at the rate of 10.6% per month, interest rate of 4% per month, and the non-party 1 agreed to make a provisional registration with respect to the real estate of this case owned by the plaintiff under the name of the defendant and the non-party 1, and as a security, the provisional registration was made on July 14, 1980, and if the plaintiff failed to pay the principal amount of 30,000,500 won and overdue interest rate of 4,00,000 won until July 26 of the same year, the court below decided to implement the principal registration procedure for the transfer of ownership and ordered the above real estate to be delivered. The defendant and the non-party 2 failed to pay the principal and interest rate of 10,000,000 won per annum, which was extended to 10,00,19810,00.

The above fact-finding by the court below is just and there is no violation of law such as the theory of lawsuit.

2. As to the assertion of omission of judgment among the grounds of appeal:

The court below rejected the plaintiff's claim for cancellation of the obligation of provisional registration of this case under the premise that the plaintiff's claim for cancellation of the obligation of this case was extinguished by the provisional registration of this case, unless there are special circumstances since the above deposit amount was merely a part of the deposit amount and the above deposit amount became the defendant's share, although it is clear that the defendant's share amount was calculated within the limit of the interest limit of the Interest Limitation Act pursuant to the agreement made on August 12, 1980, the interest amount of 23,693,835 won calculated within the limit of the Interest Limitation Act and the debt principal of 17,250,835 won on the protocol of settlement and the above deposit amount of 40,943,835 won, which is the debt principal of the debt amount of 17,943,85 won on the protocol of settlement, since the above deposit amount was not more than the deposit amount and there was no special circumstance to the contrary.

However, as in the case of this case, in case where it is found that the repayment deposit is not sufficient to extinguish the total amount of the obligation due to a dispute over whether or not there was a new interest rate agreement after the filing of the lawsuit, even though the plaintiff filed a claim for the execution of the procedure for the provisional registration and the cancellation registration for the transfer of ownership by asserting that the plaintiff repaid the total amount of the secured obligation, it shall be interpreted that the remaining obligation established during the plaintiff's claim is included in the purport of the repayment and then seeking the cancellation of the above registration. This is also recognized as a future lawsuit (see Supreme Court Decision 80Da2270 delivered on September 22, 1981).

The court below rejected the plaintiff's claim on the ground that the deposit amount of the plaintiff's repayment was only a part of the secured obligation and the secured obligation was not extinguished, but did not make any judgment on the plaintiff's claim seeking cancellation of each registration after repayment of the remaining amount of the obligation as seen above. This constitutes an illegal act affecting the conclusion of the judgment by omitting the remaining judgment by misunderstanding the plaintiff's claim, which constitutes grounds for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings. The arguments are

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-chul (Presiding Justice)