The case reversing the judgment of the court below that the establishment of the right to collateral security is invalid as anti-social acts with regard to the stores that have already been sold in lots and received from the owner of the building to some part of the intermediate payment as security for the construction price claim

The case reversing the judgment of the court below that the establishment of the right to collateral security is invalid as anti-social acts with regard to the stores that have already been sold in lots and received from the owner of the building to some part of the intermediate payment as security for the contract price claim,

Article 103 of the Civil Act, Article 187 of the Civil Procedure Act

Supreme Court Decision 91Da6221 delivered on April 23, 1991 (Gong1991, 1481) 93Da55289 delivered on March 11, 1994 (Gong1994Sang, 1181) 94Da2534 delivered on February 10, 1995 (Gong195Sang, 1284) 94Da60387 delivered on October 13, 1995 (Dong)

[Defendant-Appellee] Law Firm Dong-dong, Attorney Lee Jin-soo et al.

[Defendant-Appellant] Han River Construction Co., Ltd. and three others

Seoul Civil District Court Decision 94Na23738 delivered on October 5, 1994

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

The grounds of appeal and the supplemental appellate brief submitted after the lapse of the period are considered to supplement the grounds of appeal.

1. According to the reasoning of the judgment below, the non-party 1 corporation (hereinafter the non-party 2 corporation) transferred the above non-party 1 corporation's right to collateral security to the non-party 1 corporation on June 22, 1990 to the non-party 25,47,10,00 (the construction price is subsequently changed) and completed registration of ownership on June 18, 192 as to each of the divided stores. The non-party company's non-party 2's non-party 1 corporation's non-party 1's non-party 9's non-party 1's non-party 9's non-party 1's non-party 1's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 9's non-party 1's non-party 1's non-party 5's non-party 1's non-party 1's non-party 9's non-party 1's non-party 1's non-6's non-party 9's non-party 1'.

2. However, it is difficult to accept the lower court’s rejection of the Defendant’s assertion and the lower court’s determination that the instant mortgage-backed contract constitutes an anti-social juristic act for the following reasons.

In light of the records as to the circumstances leading up to which the above contract to establish a mortgage was made, the court below rejected Eul's 3, 4, 5-2, Eul evidence Nos. 8, 9-2, Eul evidence No. 15-1, 9-2, and Eul evidence No. 15-2, the defendant was requested to postpone the settlement date of 5 billion won per unit after the non-party company was established two times of the right to collateral security, and it was accepted under the condition that the non-party company received additional security equivalent to 3 billion won. The non-party company was 136 stores due to the joint collateral security and 136 units due to the sale price of 76,459,000 units and 150 units due to the unsold collateral security, and the non-party company was 1,000 won and 3,067,814,697 units due to the non-party company's non-party company's non-party 14 and 19,298.

In light of the aforementioned circumstances and circumstances, the registration of the maximum debt amount of the right to collateral security on the store of this case as 3 billion won is limited to the maximum debt amount of the above 141 store as the object of the joint collateral security, and the agreement between the non-party company and the defendant to limit the amount of the claim secured by the right to collateral security on the store of this case to the maximum debt amount of the non-party company's remaining debt amount, was established from the time of the above joint collateral security contract. If the facts are the same, the plaintiff paid the remaining debt amount to the non-party company of this case to cancel the registration of the establishment of the right to collateral security on the store of this case. Thus, the above joint collateral security contract concluded with the non-party company with the intent to secure the remaining debt amount to be received by the non-party company cannot be deemed to constitute an anti-social juristic act actively involved in the non-party company's breach of trust.

3. Therefore, the court below rejected the defendant's above argument as to the scope of the secured claim on the ground that there is no evidence to acknowledge it without examining the above evidence which appears to correspond to it, and the judgment of the court below as to the mortgage contract of this case was null and void as an anti-social juristic act shall be deemed to have violated the rules of evidence or committed an unlawful act of misunderstanding the legal principles as to anti-social juristic act, and therefore, there is a reason to point this out.

Therefore, without examining the remaining grounds of appeal, 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 Ahn Yong-sik (Presiding Justice)