Plaintiff (Attorney Kang-tae, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Yong-ok, Counsel for the defendant-appellant)

June 20, 2007

Seoul Central District Court Decision 2005Gahap75267 Decided April 20, 2006

1. Revocation of a judgment of the first instance;

2. As to each real estate listed in the separate sheet, the Defendant shall implement the procedure for registration of cancellation on the ground of deposit on September 7, 2005 as to the provisional registration of the transfer of ownership, which was completed by the Daejeon District Court Branch No. 34858, Aug. 12, 2005, as to the registration of the cancellation of the transfer of ownership, which was completed by No. 866, Jan. 10, 2005.

3. All costs of the lawsuit shall be borne by the defendant.

With respect to the registration of transfer of ownership as referred to in paragraph (2) of this Article, except for the execution of the procedure for registration of cancellation due to deposit on September 7, 2005, it is as mentioned in paragraphs (1) and (2) of this

1. Basic facts

The reasoning of this Court is as stated in Paragraph 1 of the reasoning of the judgment of the court of first instance (However, the reason for the judgment of the court of first instance is that "the result of the market price appraisal of the appraiser's gambling" is deleted in the evidence of 2th to 11, 2nd and 3 bottom from the 2nd and 3rd bottom to "the entry of the purport of each claim" is changed to "the entry", and 2nd to 4th and lower part are deleted from the 3rd to the 4th below). It is cited in accordance with Article 420 of the Civil Procedure Act.

2. The parties' assertion

The Plaintiff: (a) Nonparty 1, the principal debtor of the instant loan obligation, repaid the principal amount of KRW 100 million on July 29, 2005 and interest accrued until that time; (b) on September 7, 2005, the Plaintiff, as a joint and several surety on September 7, 2005, deposited the remainder principal of KRW 100 million and interest KRW 3,945,206 from July 30, 2005 to September 7, 2005, with the Defendant as the principal debtor of the instant loan obligation, and deposited the principal amount of KRW 103,945,206, the entire obligation of the instant loan, which is the secured obligation of the instant provisional registration, was extinguished; and (c) the Defendant asserts that the instant provisional registration and principal registration were liable to cancel

On the other hand, the defendant asserted that the amount he received from the non-party 1 on July 29, 2005 is not the repayment of the loan of this case, but the payment was made to the non-party 1 as the dividend for the amount invested in the non-party 1. Since the plaintiff reserveds and withdraws an objection that he received the amount of 103,945,206 won deposited on September 7, 2005 as the dividend for the investment amount, the loan of this case still has not been repaid.

3. Determination

A. Facts of recognition

(1) The defendant set the interest rate of KRW 15,00 on December 2, 2002 to Nonparty 1, KRW 3% per month, and the due date of repayment on July 2, 2003, and respectively set the interest rate of KRW 400 million on June 10, 2003 to be 4% per month, and three months after the due date.

(2) On September 10, 2003, the Defendant decided to invest KRW 450 million in the non-party 1 with respect to the sales business of approximately 38,670,000,000, YYYYYYYYY 65,000,000 in the non-party 1. The Defendant concluded an investment agreement with the non-party 1 to receive KRW 40,50,000 from the non-party 1 when the land was sold to the non-party 2,10,000,000,000,000 won per ordinary day, and from the non-party 1 when the sale of the land was completed, the Defendant would receive KRW 40,50,000 from the non-party 1 to refund the above investment amount of KRW 450,00,000.

(3) On June 9, 2004, Nonparty 1 sold part of the above forest to the Defendant to a third party, but there is a circumstance in which the remaining part of the forest could not be sold. Of the above forest, Nonparty 1 sold to a third party the amount of 860-1 forest land 14,800 square meters newly purchased from the third party and prepared and delivered a letter to the Defendant that he would pay the proceeds under the same conditions as described in the above paragraph (2).

(4) On January 10, 2005, Nonparty 1 completed the registration of establishment of a neighboring mortgage on the instant real estate as described in paragraph (1) of the above 1-B with respect to the Defendant as a security for each of the loan obligations listed in the above paragraph (1) of the same Article, while borrowing KRW 200 million from the Defendant, and completed the provisional registration of this case against the Defendant.

(5) On March 22, 2005, the Defendant lent KRW 160 million to Nonparty 1 at the interest rate of 3% per month.

(6) On June 23, 2005, the Defendant notified Nonparty 1 of the interest on the instant loan and its three-month interest in arrears, and the interest on the loans of KRW 160 million in arrears as stated in the above (5) and the interest on the four-month interest in arrears until June 30, 2005, and again notified Nonparty 1 of the payment by June 30, 2005. On July 4, 2005, the Defendant notified Nonparty 1 of the purport that the principal registration was made based on the instant provisional registration where the loans of this case were not repaid.

(7) On July 8, 2005, Nonparty 1 paid KRW 14 million among the interest of KRW 160 million (160,000,000 x 03 x 3) for the loans of this case from April 22, 2005 to July 21, 2005, and interest of KRW 18 million for three months from April 10, 2005 to July 9, 2005 (200,000 x 0.03) and interest of KRW 32 million in total.

(8) On July 11, 2005, Nonparty 1 drafted and notarized a letter of performance as follows and delivered it to the Defendant (hereinafter “instant implementation agreement”).

① Nonparty 1 paid KRW 150 million on the aggregate of global income tax in 2004, resident tax, and additional tax, etc. incurred due to the delay in payment, which was imposed on the Defendant by Nonparty 1. As such, Nonparty 1 and 2 issued a promissory note with face value of KRW 1550 million to secure payment, and deliver it to the Defendant, and pay it by July 21, 2005, and if the payment is not made, a collateral security is set up for the instant real estate.

② In return for Nonparty 1’s failure to implement an agreement that Nonparty 1 made to the Defendant on the transfer of ownership of 19,721 square meters of the Gyeonggi-do Cheong-gu Cheongdong-si, Gyeonggi-do Cheongdong-si and 7 parcels, the Defendant made a registration of ownership transfer on one-fourth share of 615-5,073 square meters of Gyeonggi-gu Cheonggu-si, Gyeonggi-do, and one-fourth share of 16-7,341 square meters of the same Ri-si 16-7, and one-fourth share of 16-7,922 square meters of the same Ri-si 16-7, and one-fourth share of 1/4 shares of the same Ri-si 16-7,922 square meters of the same Ri-si, and the registration of the establishment of a neighboring maximum debt amount of 300,000 won

③ In the event that the obligation described in paragraph (1) and (2) is discharged in preference to the repayment of the obligation of the instant loan, and the obligation of the instant loan is not repaid, a civil or criminal objection shall not be raised even if the Defendant has made the principal registration on the basis of the provisional registration of the instant case.

(9) On July 20, 2005, Nonparty 1 paid to the Defendant KRW 117 million as part of the tax amount, including global income tax, as set forth in paragraph (1).

(10) After that, on July 29, 2005, Nonparty 1 paid KRW 147.2 million to Nonparty 3, who was the Defendant’s husband, on behalf of the Defendant, at KRW 37 million. Of these, Nonparty 1 agreed to pay KRW 17 million to the remainder of the amount of taxes, including global income tax, as stated in the instant performance agreement (i.e., the instant performance agreement); KRW 1 million to the commission related to the foregoing paragraph (i) plus KRW 37 million; KRW 15.5 million to the face value of a promissory note issued pursuant to paragraph (1) of the performance agreement; and at the time of the implementation of the instant performance agreement, KRW 5.2 million had already been included in the loan amount; KRW 1.5 billion to the loan amount, as part of the interest on the loan amount, KRW 4.5 billion to the loan amount; and KRW 1.5 million to the loan amount of KRW 105 billion to the loan amount of KRW 2.15 billion to the loan amount of this case.5 billion.

[Evidence] Nonparty 3-7, 12, 13, and evidence Nos. 8-1, 2, 1, 7, 8, 11, 16, 3, 9-1, 2, 3, 4-2, 15-1, 3, 4, 6, and 19-5 of evidence Nos. 15-1, 4, 5 of the first instance trial witness Non-party 1, 4, 5 of the first instance trial witness, and 35 of the evidence Nos. 32-1, 2, 3, and 34-1, 6 of the first instance trial witness evidence, and Non-party 6 of the second instance trial witness evidence before the submission of the above evidence, are contradictory to the defendant's argument and the evidence No. 6 of the first instance trial on the date of pleading before the second instance trial, and the evidence No. 6 of the first instance trial on the date of pleading of the first instance trial cannot be deemed contradictory to the above evidence No. 35 of the first instance trial.

(b) Duty to cancel registration;

As seen above, Nonparty 1 paid 100 million won out of the loan principal of this case and interest thereon until July 29, 2005. As seen in subparagraph 1- E (e) of the above 1, the Plaintiff, as a joint guarantor, reserved the entire obligation of this case by making payment to the Defendant in deposit with the principal as a deposit, and by making payment from September 7, 2005 to September 7, 2005, the remaining principal amount of KRW 100 million and KRW 40-day interest of KRW 3,945,206 (10,000,000 x 00 x 000 x 00 x 036 x 40/365, and less than KRW 103,945,206, the loan obligation of this case was entirely extinguished by making payment to the Defendant as the principal deposit (In accordance with the record of evidence No. 21).

Therefore, the defendant is obligated to cancel the provisional registration of this case where the loan obligation of this case was the secured obligation, and on the other hand, there is no evidence to prove that the defendant notified the plaintiff of the appraised value of the liquidation amount under the Provisional Registration Security Act around August 12, 2005, which was completed the principal registration of this case, and since this registration of this case has been made unlawful in violation of the above Acts, the defendant is obligated to cancel this registration (it is obvious in the record that the defendant notified the plaintiff of the liquidation amount on November 24, 2005, which was after the loan obligation of this case was extinguished, because it is obvious that the registration of this invalidation is valid registration consistent with the substantial relation).

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair, so the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and the provisional registration of this case and the cancellation of principal registration is ordered against the defendant.

[Attachment List omitted]

Judges Choi su-ju (Presiding Judge)