[1] The method of distinguishing whether the ownership transfer registration that was completed in relation to a debt is a substitute payment or a collateral for the previous debt

[2] The case affirming the judgment below holding that the registration of transfer of ownership is for the security of the agreed money in light of all the circumstances, in a case where the creditor Gap received the ownership transfer of Eul and Byung's store after receiving the agreed money from the debtor Eul and Byung

[1] In cases where the transfer registration of ownership in relation to a debt is completed, if it is not clearly revealed that it was transferred as payment in kind, or whether it was transferred for the security of the previous debt, one of the circumstances such as the amount of debt and the value of the real estate at the time of the transfer of ownership, the course and process of the acquisition of the debt, the situation at the time of the transfer of ownership, and the control and disposal of the real estate thereafter,

[2] The case affirming the judgment below holding that the above transfer of ownership is for the security of the agreed amount rather than the payment in kind, taking into account the following circumstances: (a) in a case where the creditor Gap received the ownership of the Byung-owned store after receiving the agreed amount from the debtor Eul and Byung, and (b) transferred the ownership of the Byung-owned store with heavy provisional attachment or collateral security in lieu of paying the agreed amount, and (c) the transfer of ownership of the Byung-owned store was difficult to obtain in light of transaction practices and empirical rules, barring special circumstances, Eul's husband had the right to registration of the store; and (d) Byung continued to control Eul-owned store

[1] Articles 105, 372, and 466 of the Civil Act / [2] Articles 105, 372, and 466 of the Civil Act

[1] Supreme Court Decision 92Da19880 delivered on June 8, 1993 (Gong1993Ha, 1992)

Plaintiff (Counterclaim Defendant) (Law Firm Han, Attorneys Kim Yong-won et al., Counsel for the plaintiff-appellant)

Defendant Counterclaim Plaintiff and one other

Defendant 3 (Law Firm LLC, Attorneys Yoon Byung-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na87159, 87166 decided October 20, 2010

All appeals are dismissed. The costs of appeal between the plaintiff (Counterclaim defendant) and the defendant 3 are assessed against the defendant 3, the costs of appeal between the plaintiff (Counterclaim defendant) and the defendant (Counterclaim plaintiff) 1 and 2, respectively.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In a case where the registration of ownership transfer is completed in relation to a debt, if it is not clearly revealed that it was transferred as payment in kind, or whether it was transferred for the security of the previous debt, it is necessary to place one of the parties concerned by taking into account all the circumstances such as the amount of debt at the time of the transfer of ownership, the value of the real estate, the process of holding the debt, the process thereof, the situation at the time of the transfer of ownership, and the control and disposal of the real estate thereafter (see Supreme Court Decision 92Da1980 delivered on June 8,

The court below, based on the adopted evidence, found the facts as stated in its reasoning. ① The provisional attachment registration of KRW 2.1 billion was completed at the instant store at the time of the transfer of ownership, which is equivalent to KRW 530,000,000,000,000,000, and the land which is the object of the site ownership was established as a right to collateral security equivalent to KRW 4.6 times the total maximum debt amount of KRW 7,000,000,000,000,000,000 won was established. However, the court below rejected the registration of transfer of ownership of the instant store at the time of the transfer of ownership by the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) in lieu of the repayment of the debt amount of KRW 210,00,000,000,000,000, in light of the transaction practices and empirical rules, barring special circumstances, it is difficult for the Nonparty to obtain the ownership of the instant store from the Plaintiff.

In light of the above legal principles and records, the above determination by the court below is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on transfer for security

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is just to determine that the fulfillment period of the obligation to pay the agreed amount of this case has arrived, and contrary to the rules of logic and experience, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence,

3. Regarding ground of appeal No. 3

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that Defendant 1 and 2’s refund of value-added tax and registration expense refund claim against the Plaintiff were set-off and extinguished within the amount equal to the agreed amount claim in this case, and there is no error of violation of the principle of free evaluation of evidence against logical and empirical rules.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Il-young (Presiding Justice)