Whether Article 607 and Article 608 of the Civil Act shall apply in cases where an agreement for payment in kind is made under a quasi-loan for consumption (affirmative)

The buyer of a real estate shall pay a sum of KRW 50 million to the seller of the remaining sum and borrow the remainder at the rate of KRW 2% per month from the seller. However, if the buyer agrees to pay the remainder by the due date, the buyer shall claim the registration of ownership transfer of the real estate purchased, barring any special circumstance, the part of the buyer's agreement to borrow the amount constitutes quasi-loan, and the part of the buyer's agreement to pay it in lieu of the right to claim the registration of ownership transfer of the real estate purchased constitutes a promise to return the substitute, and Articles 607 and 608 of the Civil Act apply to the borrowed object returned by the borrower under the quasi-loan loan agreement.

Articles 605, 607, and 608 of the Civil Act

Supreme Court Decision 65Da1302 Decided September 21, 1965 (No. 13-2, 145) Supreme Court Decision 67Da1990 Decided October 31, 1967 (No. 15-3, 259) Supreme Court Decision 92Da13790 Decided October 9, 192 (Gong192, 310)

Park Young-man (Attorney Park Young-ok, Counsel for the plaintiff-appellant)

Kim Jong-chul

Gwangju District Court Decision 96Na1524 delivered on October 11, 1996

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, on July 24, 1992, the court below rejected the obligee's claim for transfer registration of ownership of the above share purchased by the obligee in lieu of the above payment, and the obligee's claim for transfer registration of payment of 10,000 won as contract deposit, and the obligee paid 50,000 won as part of the remainder payment on August 20 of the same year. The obligee paid 50,000 won as the remainder payment to the obligee on August 31, 1993. If the obligee fails to pay the above amount by the due date, the obligee agreed to claim for transfer registration of ownership of the above share purchased in lieu of the above payment. In other words, the obligee's claim for transfer of the above remainder payment agreement to the obligor by the due date is based on the premise that the obligee failed to pay the above remainder to the obligor by the due date, and thus, the obligee's right to claim transfer registration of ownership and the right to claim transfer registration of payment of the loan in lieu of the above claim for transfer registration of the loan.

2. However, it is difficult for the court below to accept the creditor's assertion on the above ground. If the creditor pays 50 million won as part of the remaining amount to the debtor, and the remaining remaining remaining 50 million won has agreed to lend the creditor with interest at a rate of 2% per month on August 31, 1993 at the maturity date, it shall be deemed as quasi-loan for consumption, barring special circumstances, as a contract extinguishing the existing payment amount and newly establishing the loan obligation based on the loan for consumption, and if the creditor fails to pay the above amount by the maturity date, the agreement that the creditor agrees to pay the above amount as the claim for ownership transfer registration of the above portion purchased by the creditor in lieu of the payment of the above amount shall be deemed as a promise to return the substitute, while Articles 607 and 608 of the Civil Act shall apply to the borrowed goods to be returned by the borrower under a quasi-loan contract like this case (see, e.g., Supreme Court Decision 196Da31979, Oct. 197, 19796).

3. Nevertheless, the court below held that Article 607 and Article 608 of the Civil Act is not applicable since the court below's decision in this case constitutes a case where the right to claim the transfer of ownership on the object of a sales contract is agreed in lieu of the repayment of the remaining obligation under the sales contract, and thus it is contradictory to the reasoning or misunderstanding the legal principles as to the scope of application under Articles 607 and 608 of the Civil Act, and it is obvious that such mistake has influenced the judgment. Thus, the appeal pointing this out has merit.

4. 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 Lee Im-soo (Presiding Justice)