[1] In a case where a registration of establishment of several units of collective security rights was completed to secure a claim arising out of the same basic contract, whether the joint collateral security relationship between several units of collective security rights is established regardless of whether the registration of joint collateral security relationship under Article 149 of the Registration of Real Estate Act was made (affirmative) and the scope thereof (affirmative)

[2] The case affirming the judgment of the court below that the right to collateral security established on the right to collateral security established on the part of the building and the right to collateral security established on the right to collateral security established on the right to collateral security established on the part of the building is a joint collateral security established on the right to collateral security within the scope of the identical maximum debt amount in light of various circumstances, including the fact that the right to collateral security and the maximum debt amount are not registered on the right to collateral security as stipulated in

[3] In a case where a third party having a legal relationship not compatible with the cancellation before the cancellation of the contract knew or could have known the possibility of the cancellation of the contract, whether the third party may claim the legal effect of the cancellation (negative)

[1] Article 149 of the Registration of Real Estate Act provides that when an application for the registration of joint collateral under Article 145 of the same Act is filed for the registration of each real estate, the right to each real estate shall be indicated in the item column for the pertinent section in the registration form for the real estate and the purport that the right is also the object of collateral. However, this is intended to clarify the relation of right by publicly announcing not only the registration procedure applicable only to the case where several objects of joint collateral are the right to several real estate, but also to the purport that several mortgages are bound by the identity of the secured claim. As such, the registration of joint collateral relationship cannot be deemed the requisite for establishing several joint collateral mortgages to secure the overlapping claims arising out of the same basic contract between the mortgagee and the mortgagee. Accordingly, when several mortgages have been completed, regardless of whether the registration of joint collateral relationship was completed in accordance with Article 149 of the Registration of Real Estate Act, each joint collateral relationship between several mortgages is established within the same scope as the maximum debt amount.

[2] The case affirming the judgment below that the right to collateral security established on the right to collateral security established on the part of a building and the right to collateral security established on the right to collateral security established on the right to collateral security established on the part of the building is a joint collateral security established on the same secured debt within the scope of the identical maximum debt amount in light of various circumstances, including the fact that the right to collateral security and the maximum debt amount are identical, although not registered on the right to collateral security established on the right

[3] In a case where one of the parties to a contract cancels a contract, the legal effect of the contract cannot be asserted against a third party who has a legal relationship not compatible with the rescission before the contract is rescinded, and this does not change even if the third party knew or could have known that the contract may be rescinded before the contract is rescinded.

[1] Articles 145 and 149 of the Registration of Real Estate Act, Article 357 of the Civil Act / [2] Articles 145 and 149 of the Registration of Real Estate Act, Article 357 of the Civil Act / [3] Article 548 (1) of the Civil Act

Plaintiff (Attorney Park Young-chul et al., Counsel for plaintiff-appellant)

Bankruptcy Trustee ○○○○ (Attorney Lee Jae-dong, Counsel for the bankrupt)

Defendant 2 and one other

Defendant 4 (Attorney Lee Jae-in, Counsel for defendant-appellant)

Daegu High Court Decision 2006Na10263 Decided July 3, 2008

All appeals are dismissed. The costs of appeal are assessed against the defendant and the defendant (Withdrawal) 2 and 3. The "Defendant Deposit Insurance Corporation" as stated in Article 2-2-b and (3) of the judgment of the court below shall be corrected to the "Korea Deposit Insurance Corporation of the Daegu Fiber Credit Cooperatives".

1. Judgment on the Defendant’s grounds of appeal

A. Article 149 of the Registration of Real Estate Act provides that when an application is filed for the registration of joint collateral under Article 145 of the same Act with respect to each real estate, the registration of the right to each real estate shall be made by indicating the other real estate in the item column of the pertinent section in the registration form for the real estate and stating that the right is also the object of the collateral. However, this is intended to clarify the relation of right by publicly announcing the purport that only the case where several objects of joint collateral are the right to several real estate, and that several mortgages are bound by the identity of the secured claim. As such, the registration of joint collateral relationship cannot be deemed the requirements for establishing a joint collateral or requirements for setting up a joint collateral. Accordingly, when a joint collateral agreement is reached between the mortgagee and the mortgagee to set up several joint collateral mortgages to secure the overlapping claim arising out of the same basic contract and completing several collateral registrations, regardless of whether the registration of joint collateral relationship was completed in accordance with Article 149 of the Registration of Real Estate Act, each joint collateral relationship between several mortgages is established within the same scope as the maximum maximum amount of maximum debt amount.

B. According to the reasoning of the judgment below, although the right to lease on a deposit basis on a deposit basis as to the part of the instant building and the right to lease on a deposit basis on a deposit basis as to the instant right to lease on a deposit basis as to the instant building has not been registered, the court below determined to the effect that each of the secured claims is identical to the loan principal amount of KRW 200 million and its interest and damages for delay, and that each of them is equal to the maximum debt amount of KRW 300 million, and the credit union credit union's loan receipt operation manual provides that the maximum debt amount of the right to lease on a deposit basis shall be at least 120% of the secured debt, and that the establishment of the right to lease on a deposit basis to secure each of the secured debt in light of the past practices of loans from the Daegu-Seoul FFFF Credit Cooperative constitutes an example. The court below stated the fact finding that several secured claims on a deposit basis and the right to lease on a deposit basis of a deposit on a deposit basis and the right to lease on a deposit basis were set for the same purpose as the secured debt amount of this case.

In light of the aforementioned legal principles and the records, the above judgment of the court below is just. The court below is not appropriate to determine whether the right to collateral security and the right to collateral security of this case are in the relationship of joint collateral security, but to determine whether the right to collateral security and the right to collateral security of this case is identical to each other under the same basic contract. However, this does not affect its conclusion in this case where only loan claims exist as the right to collateral security of the instant right to collateral security and the right to collateral security of this case, which became final and conclusive as the right to collateral security of this case. It is not erroneous in the misapprehension of legal principles as to the establishment of joint collateral security and the scope of the right

2. Determination on the grounds of appeal by the acquiring intervenor by the defendant (Withdrawal) 2 and 3

A. As to the misapprehension of legal principles as to the interpretation and application of the proviso of Article 548(1) of the Civil Act

(1) In a case where one of the parties to a contract has rescinded a contract, the legal effect following the rescission of the contract cannot be asserted against a third party having a legal relationship not compatible with that prior to the rescission of the contract, and this does not change even if the third party knew or could have known that the contract may be rescinded prior to the rescission of the contract.

(2) According to the reasoning of the judgment below, the court below acknowledged the provisional registration of the building and site of this case as of October 22, 2003 before the plaintiff notified the cancellation of the sales contract to the Yellow Interest Group Co., Ltd., the purchaser of the building of this case and site of this case (hereinafter “YY”) on October 29, 2003. The court below determined that the plaintiff constitutes a third party under the proviso of Article 548 (1) of the Civil Act regardless of whether the plaintiff was aware of the cancellation of the sales contract, and therefore, it did not claim the effect of the cancellation to the plaintiff.

In light of the above legal principles and records, the above judgment of the court below is just, and there are no errors in the misapprehension and application of the proviso of Article 548 (1) of the Civil Act, the principle of good faith and abuse of rights, or violation of the duty of explanation as otherwise alleged in the ground of

B. As to the misapprehension of legal principles as to liquidation procedures under the Provisional Registration Security Act

According to the reasoning of the judgment below, the court below acknowledged on April 28, 2005 that the plaintiff was unable to receive a loan of KRW 1,50,000,000 for Yellow Interest Adjustment, and that on July 16, 2004, the total amount of the secured debt of the security provisional registration and the amount of the credit secured by senior security, etc. as to the building and site of this case exceeds KRW 2,590,596,220, and that there was no liquidation amount exceeding KRW 3,894,372,266, and that there was no liquidation amount exceeding KRW 2,590,596,220. The court below determined that the plaintiff acquired the ownership of the building and site of this case by lawful liquidation procedures pursuant to Articles 3 and 4 of the Provisional Registration Security Act.

In light of the records, the above judgment of the court below is just and acceptable. The court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence while selecting relevant evidence and comparing and evaluating the probative value of evidence, or by misapprehending the legal principles on liquidation procedures provided for in Articles 3 and 4 of the Provisional Registration Security Act. The ground of appeal pointing this out is not accepted.

C. As to the misapprehension of legal principles as to the usefulness of invalidation registration

In a case where a registration becomes null and void after the beginning satisfies the substantive requirements after the registration becomes null and void, or where the registration becomes null and void after the registration becomes void, the usefulness of such invalidation registration shall be allowed only when there is no third party having an interest in the registration before an agreement to use the registration is reached (see, e.g., Supreme Court Decisions 63Da583, Oct. 10, 1963; 2006Da72802, Feb. 26, 2009).

According to the reasoning of the judgment below, although the provisional registration of the right to lease on a deposit basis as to the building in this case was completed on October 22, 2003, and the date the registration of the right to lease on a deposit basis was completed under the name of the plaintiff was completed on April 28, 2005, and the date the additional registration of the right to lease on a deposit basis was completed under the name of the non-party 1 on July 14, 2006, it can be known that the registration of the right to lease on a deposit basis as to the building in this case, which is null and void between the owner of the building in this case, was made useful for the registration of the right to lease on a deposit basis as to the building in this case, and the additional registration of the right to lease on a deposit basis was completed accordingly,

D. As to the misapprehension of legal principles as to Article 108(2) of the Civil Act and the violation of the rules of evidence

Upon examining the reasoning of the judgment below in light of the records, the court below determined that it is reasonable to view that all of them were transferred a right of lease on a deposit basis with the knowledge that the contract of lease on a deposit basis between the defendant (Withdrawal) 2 and 3 was a juristic act by false agreement between the non-party 2 and 3, and that the contract of lease on a deposit basis was null and void because the non-party 1 transferred the right of lease on a deposit basis from the defendant (Withdrawal) 2 and 3 on July 14, 2006. The defendant (Withdrawal) 2 and 3 transferred the right of lease on a deposit basis from the non-party 1 on July 20, 206 and the supplementary registration was completed.

In light of the records, the above judgment of the court below is just and acceptable. The court below did not err in violation of logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence while selecting relevant evidence and comparing and evaluating the probative value of evidence, or in misunderstanding the legal principles on interpretation and application of Article 108(2) of the Civil Act or misunderstanding the burden of proof. The allegation in the grounds of appeal on this part is not accepted.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is clear that the “Defendant Korea Deposit Insurance Corporation” as stated in Article 2(b) and (3) of the Disposition No. 2 of the judgment of the court below stated the error of the “Korea Deposit Insurance Corporation in the bankruptcy trustee of the Daegu Fiber Credit Cooperatives, Daegu Fiber Credit Cooperatives, which is declared bankrupt,” and it is corrected

Justices Jeon Soo-ahn (Presiding Justice)