In a case where the obligor has made a provisional registration for security to the obligee and delivered real estate to the obligee, and then allows the obligee to use or benefit from the real estate in lieu of the payment of the interest on the secured claim or the damages for delay, whether the extinctive prescription of the secured claim

Even in the case of taking possession of an immovable property on which a provisional registration for security has been made, the extinctive prescription of the secured claim does not cease to exist, but in the case of partially discharging an obligation, the interruption of prescription takes effect as to the whole obligation. If an obligor delivers an immovable property to the obligee after completing a provisional registration for security and then allows the obligee to use or benefit from the immovable property in lieu of the payment of interest on the secured claim or damages for delay, then the obligor may be deemed to continue to pay the interest or damages for delay to the obligee while the obligee gains profit

Article 169 of the Civil Act

Supreme Court Decision 78Da1790 delivered on May 13, 1980 (Gong1980, 12871) Supreme Court Decision 2006Da12701 Delivered on March 15, 2007 (Gong2007Sang, 534)

Plaintiff (Attorney So-young et al., Counsel for the plaintiff-appellant)

Defendant

Ulsan District Court Decision 2008Na3121 decided June 4, 2009

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

The grounds of appeal are examined.

Even if a person takes possession of an immovable property on which a security has been registered, the extinctive prescription of the secured claim is not suspended (see Supreme Court Decision 2006Da12701, Mar. 15, 2007). However, if a part of an obligation is repaid, the interruption of prescription takes effect as to the whole obligation (see Supreme Court Decision 78Da1790, May 13, 1980, etc.). If an obligor takes over an immovable property on which a security has been registered and transfers it to the obligee and allows the obligee to use or benefit from the secured claim in lieu of paying the interest or delay damages on the secured claim, then the obligor may be deemed to continue to pay the interest or delay damages to the obligee while the obligee uses or benefits therefrom. Therefore, the extinctive prescription of the secured claim shall be interrupted.

According to the facts and records acknowledged by the court below, the defendant shall pay to the plaintiff 11.3 million won of the wood price of this case until December 31, 1982, and the defendant made a provisional registration of the right to claim ownership transfer in the name of the plaintiff with respect to the real estate of this case owned by himself for the purpose of security, and the defendant was unable to pay the plaintiff the wood price of this case, and delivered the real estate of this case to the plaintiff around December 31, 1982, and allowed the plaintiff to use and benefit from the apartment of this case in lieu of the payment of interest or delay damages on the claim for the wood price of this case. The plaintiff is the primary cause of claim of this case. The plaintiff is seeking implementation of the procedure for ownership transfer pursuant to the provisional registration of this case.

The lower court rejected the Plaintiff’s primary claim on the ground that the instant timber payment claim, which is the secured claim for the registration of collateral transfer under the Plaintiff’s name, arrived at the due date on December 31, 1982 and became extinct on January 1, 1993 after ten years passed since the completion of the statute of limitations on January 1, 1993, the said provisional registration also became null and void and cannot seek implementation of the principal registration procedure for the transfer of ownership.

However, according to the above legal principles and factual relations, the defendant could deliver, use and benefit from the real estate of this case to the plaintiff instead of paying interest or delay damages on the claim for timber of this case. While the plaintiff uses and benefits from the real estate of this case with the consent of the defendant, it can be deemed that the defendant continues to pay part of the claim for timber of this case, so there is sufficient room to view that the prescription

Nevertheless, the judgment of the court below, which held that the secured debt of the provisional registration of this case expired by prescription, is erroneous in the misapprehension of legal principles as to the extinctive prescription or incomplete hearing.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min Il-young (Presiding Justice)