2018Da285458 Implementation of the procedure for registration for cancellation of ownership

A Stock Company

C

Suwon District Court Decision 2018Na60960 Decided October 11, 2018

April 23, 2019

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

The grounds of appeal are examined.

1. As to the assertion that D has breached its duty under an exchange contract

A. Article 136(1) of the Civil Procedure Act provides, “The presiding judge may ask questions to the party in fact or in law, and urge him/her to testify,” and Article 136(4) of the same Act provides, “The court shall give the party an opportunity to state his/her opinion on the legal matters which are obviously deemed to have become excessive to the party.” Therefore, in cases where a party’s assertion is clearly unreasonable due to negligence or misunderstanding, or where the party’s assertion is unclear or incomplete or inconsistent, the court shall actively exercise his/her right to explain and give the party an opportunity to state his/her opinion. If one party in a trial based on the legal point of view that was entirely unexpected to the party while neglecting the right to state opinion, the court fails to exhaust all his/her duty to state his/her opinion and is unlawful. In cases where there is any inconsistency or inconsistency between the party’s assertion and evidence submitted, the court shall be deemed to have exercised its right to state opinion (see, e.g., Supreme Court Decision 82Da82222, Aug. 27, 2015).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On June 9, 2017, the Plaintiff entered into a contract with the Defendant’s husband D to exchange Q building Rdong S (hereinafter “S”) located in Pyeongtaek-si P, the Plaintiff’s husband, with the 484m prior to G, H forest land 308m2 and E, and J forest 146m2 (hereinafter “the land of this case, including the land of this four parcels,” and the specific lot number of individual land.

2) At the time of conclusion of the exchange contract, the loan of this case set the right to collateral security of KRW 31.2 million with the maximum debt amount and KRW 55 million with the maximum debt amount, and the land of this case set the right to collateral security of KRW 290 million with theN (hereinafter “N”), the maximum debt amount and KRW 290 million with the maximum debt amount.

3) The Plaintiff and D agreed that the Plaintiff shall succeed to the collateral obligation of KRW 5 million among the collateral obligation of KRW 31.2 million against the maximum debt amount, and that of KRW 26 million among the collateral obligation of KRW 31.2 million against the maximum debt amount (the clerical error of KRW 26 million under the exchange contract is recognized as both the Plaintiff and the Defendant) D succeeds to D, and that KRW 67 million out of the collateral obligation of this case shall be succeeded to the Plaintiff. Meanwhile, the collateral security right of this case is not only the land of this case but also other real estate as joint collateral.

4) On June 26, 2017, the Plaintiff cancelled the registration of creation of a mortgage over the maximum debt amount of KRW 55 million. On July 17, 2017, the Plaintiff completed the registration of ownership transfer on the instant loan in the name of the Defendant in accordance with D’s instruction.

5) On September 25, 2017, the Plaintiff agreed to allow the Plaintiff to succeed to KRW 67 million among the collateral debt of the instant case, and to register the reduction of the maximum debt amount. From N to N, the Plaintiff was informed from N that the instant land cannot be excluded from I and J land out of the instant land from the joint collateral of the instant right to collateral security. Nevertheless, the Plaintiff filed the instant lawsuit against the Defendant and D seeking the cancellation of the ownership transfer registration under the Defendant’s name, which was completed in the course of restoring D to its original state on the ground that D did not take any measure.

6) As to this, the Defendant asserted to the effect that, among the collateral security obligations of this case, the amount borne by the land of this case is merely KRW 67 million, and that the amount in excess of the scope is secured by another real estate that is jointly secured, it is possible for the Plaintiff to reduce the collateral security obligations of this case to KRW 67 million and register the reduction of the maximum debt amount at any time after the transfer of ownership.

C. The lower court determined that there was no evidence to view that the terms of the exchange contract include an agreement with D to allow D to succeed to KRW 67 million among the instant collateral security obligations to the Plaintiff, and further to complete the registration to reduce the maximum debt amount.

D. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Under an exchange contract, the Plaintiff and D’s intent will remain only as collateral security obligations of KRW 67 million on the instant land. The Plaintiff’s assertion is not possible to remaining as collateral obligations of KRW 67 million on the instant land since I and J land among the instant land cannot be excluded from the joint collateral of the instant right to collateral security, and the Defendant asserts that it may be possible for the Plaintiff to acquire the ownership transfer of the instant land after the Plaintiff received the ownership transfer. Meanwhile, there is no circumstance to deem that the Plaintiff refused the ownership transfer of the instant land. Ultimately, as the Defendant’s assertion, the Plaintiff remains as collateral security obligations of KRW 67 million on the instant land after completing the registration of the ownership transfer of the instant land, and reduces the maximum debt amount corresponding thereto without the consent of the mortgagee. However, it cannot be said that the Plaintiff could be possible without the consent of the mortgagee.

2) The Plaintiff and D’s intent remain only as collateral obligations of KRW 67 million on the instant land. In order to realize such intent, procedures such as the disposal of the instant collateral security, the determination of collateral obligations, the reduction of the maximum amount of debt, and the change of the obligor are deemed necessary. In doing so, it is highly probable to deem that D, a party to the exchange contract, has the duty to cooperate. Nevertheless, D did not perform its duty at all.

3) As such, there is a contradiction or uncertainty in the Plaintiff’s assertion, and there is considerable room to view that D did not perform its obligations under the exchange contract as alleged by the Plaintiff, the lower court should have deliberated and determined the validity of the Plaintiff’s claim after clarifying the following by exercising the right of explanation on the following: (a) the amount of the instant collateral security obligation at the time of the exchange contract and the amount of the share of the instant land; (b) the amount of the instant collateral security obligation; and (c) the amount of the share of the instant land; and (d) the amount of the instant collateral security obligation only for the instant land to be discharged; (b) what procedures should be followed in detail; (c) whether the Plaintiff or DO N before and after the exchange contract had asked the Plaintiff or attempted to make an attempt to take such procedures; and

4) Nevertheless, the lower court rejected the Plaintiff’s claim based on the determination that there is no evidence that the content of the exchange contract contains an agreement to complete the registration of reducing the maximum debt amount of the instant right to collateral security. In so doing, the lower court erred by failing to exhaust all necessary deliberations, such as failure to perform the duty of explanation or intellectual duty, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on

2. As to the argument that the Plaintiff’s declaration of termination is legitimate

A. In cancelling a contract on the grounds of delay of performance, the peremptory notice of performance, which is a prerequisite for the premise, is not necessarily required to be given in advance for a certain period, and the right of rescission shall accrue after the lapse of a reasonable period from the highest time. If the obligee has notified the obligor of his/her intention to cancel the contract on the grounds of delay of performance, it can be deemed that the obligor had the peremptory notice of performance, unless the obligee specifically refuses to accept the performance, and if the contract has not been performed within a reasonable period, the contract may be rescinded (see, e.g., Supreme Court Decisions 94Da35930, Nov. 25, 1994; 2002Da24942, Aug. 27, 2002).

B. As seen earlier, the Plaintiff asserted the cancellation of an exchange contract on the ground that D violated the obligation to succeed to KRW 67 million among the instant collateral security obligations, and filed a claim for the cancellation of the registration of transfer of ownership in the name of the Defendant, which was completed on the instant loan due to restitution to its original state, and the Defendant and D continued to violate D’s duty even at the time of the closing of the argument in the lower court, which was 11 months since the date when the copy of the complaint was served on October 13, 2017, and as long as the Plaintiff asserted that it would continue to cancel the exchange contract, the exchange contract between the Plaintiff was rescinded. Furthermore, the Defendant asserted that the failure to perform the obligation under the exchange contract did not constitute a cause attributable to D, and that there was no dispute at all in the course of pleadings as to whether there was a peremptory notice of implementation setting a reasonable period of time.

C. Nevertheless, on the grounds as indicated in its reasoning, the lower court determined that the Plaintiff’s declaration of intent for rescission of an exchange contract is unlawful on the grounds that there was no assertion and proof as to the Plaintiff’s peremptory notice of the repayment of succession to the obligation against D with a reasonable period of time. In so determining, the lower court erred by misapprehending the legal doctrine regarding the occurrence of the right of rescission, or failing to exhaust all necessary deliberations, such as failing to perform the duty of explanation or intellectual duty, thereby adversely affecting the conclusion

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo