(a) When an agreement is reached to redeem the principal and interest of a debt within a certain period as another property right is transferred by way of arranging the existing debt, if the agreement has been reached to redeem the property;

(b) The case holding that even if an agreement between the parties to transfer a property right has been made by the intention of payment in kind, it is reasonable to see it as a promise for payment in kind, and since the value exceeds the principal and interest, only the validity as a transfer in

A. In the event that an agreement was made to redeem the principal and interest of a debt within a certain period as a result of the transfer of other property rights by way of arranging existing debts, barring any other special circumstances, it shall be interpreted that an agreement was made between the parties to transfer the property for the purpose of collateral and to pay the principal and interest through the process of settlement through the exercise of security rights if the repayment is not made within the due date.

B. The case holding that, even if an agreement between the parties to transfer a property right was made with the intention of payment in kind, not with a collateral, but with the intent of payment in kind, if the debtor pays the principal and interest between them within three years after the agreement, if the creditor also agrees to return the object to the debtor, it is reasonable to see that it is the promise for payment in kind, and the value exceeds the value of the principal and interest at the time of the agreement, and therefore, the promise for payment in kind itself is null and void and it is necessary

(b)Article 372 of the Civil Code : (b) security for transfer and provisional registration; (b) Articles 607 and 608 of the Civil Code;

A.B. Supreme Court Decision 68Da1654 delivered on October 22, 1968 (Gong163Du111 delivered on November 19, 1968). Supreme Court Decision 68Da1570 delivered on November 19, 1968 (No. 163Du193 delivered on December 22, 1970) 70Da2295 delivered on December 222, 1970 (No. 80Da998 delivered on July 22, 1980 (Gong1980, 13081)

[Judgment of the court below]

Defendant-Appellee et al., Counsel for the defendant-appellant-appellee

Daegu High Court Decision 89Na5998 delivered on March 7, 1991

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below acknowledged that, based on the macroficial evidence, the non-party 1, the plaintiff's wife, borrowed several amounts of money from the non-party 2, who was the defendant's mother to the non-party 4,000,000 interest rate of 2,000 % per annum, and thereafter, the plaintiff decided to transfer the land of this case to the defendant by way of the repayment of the total amount of the loan principal and interest amount of 42,00,000 won until May 13, 1985. However, if the plaintiff pays the principal and interest within 3 years from the date of redemption, the plaintiff deposited the principal and interest at the expiration of 3 years from the redemption period, and therefore, the plaintiff's claim for cancellation of the ownership transfer of this case against the defendant is without merit.

The above determination by the court below is not aimed at securing the performance of the above obligation borne by the plaintiff, but for the so-called payment in lieu of the obligation to fully transfer the right to the transfer of ownership registered under the name of the defendant. However, although the plaintiff performed a special contract for repurchase as stated in its holding, it is the purport that the plaintiff lost the right of repurchase by excluding the redemption period (three years).

However, if an agreement was made to redeem the principal and interest of a debt within a certain period by transferring other property rights through the reorganization of existing debts, barring any other special circumstances, it shall be interpreted that the parties have agreed to transfer the property for the purpose of collateral and to pay the principal and interest through the settlement process by exercising the security right if the repayment is not made within the due date (see Supreme Court Decision 68Da1570, Nov. 19, 1968; Supreme Court Decision 68Da1570, Nov. 19,

The circumstances acknowledged by the court below in this case do not constitute a special circumstance to view the above agreement as a payment in kind, instead of an agreement to provide collateral between the plaintiff and the defendant.

However, according to the records, in making the above agreement between the plaintiff and the defendant on May 13, 1985, the principal and interest of the loan up to that point shall be determined at 42,00,000 won, and the provisional registration of the right to claim the transfer of ownership in the name of the defendant is to be cancelled prior to that ( December 13, 1984) and the defendant bears the expenses required for the registration of the transfer of ownership in this case. However, if the above agreement between the plaintiff and the defendant on May 13, 1985 is completely extinguished, and the principal and interest of the land in this case may be returned to the plaintiff within 3 years after the above agreement and the property may be returned to the plaintiff within 80 years after the agreement was made by the court below (see, e.g., Supreme Court Decision 200Da8780, May 13, 1985). Further, if the plaintiff made an agreement to pay the transferred ownership in this case to the plaintiff within 97 years after that agreement was made by the court below.

Even according to the court below's findings, since the value of the land of this case at the time of the agreement for payment in substitutes exceeds 5,320,000 won and the principal and interest up to that time exceeds 42,00,000 won, the validity of the agreement for payment in substitutes cannot be recognized (it is erroneous in the judgment that the value of the land of this case at the time of the agreement for payment in substitutes does not exceed the principal and interest of the land of this case at the time of the agreement for payment in lots and the value of the substitute transferred in comparison

Therefore, if the ownership transfer registration for the land of this case made in the name of the defendant was made for the purpose of security other than payment in kind, even if the period of redemption agreed upon by the plaintiff, even if the period of redemption was exceeded, the principal and interest of the obligation can be repaid and the security can be returned until the settlement procedure is completed by the execution

For the reasons indicated in its holding, the court below determined that the land of this case was transferred to the defendant as payment in substitutes, not for the purpose of security, and that the plaintiff lost its right of repurchase and rejected the plaintiff's claim of this case. It erred by interpreting the above repayment agreement between the plaintiff and the defendant or by misunderstanding the legal principles as to the transfer in security, thereby affecting the conclusion of the judgment. The argument on

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-ju (Presiding Justice)