Where a debtor fails to repay his/her obligation after filing a provisional registration with respect to the real estate due to debt security, the legal relationship where the debtor agrees to transfer the principal registration.

If the parties agree to transfer the principal registration based on the provisional registration in a case where a provisional registration is made on a security for the obligation to return the purchase price and the obligation is not repaid, the obligation is extinguished, and the ownership of the real estate is attributed to the creditor in a conclusive manner, barring any special agreement between the parties, it cannot be deemed that there was an agreement on payment in kind, and rather, it is reasonable to presume that the so-called settlement contract is a weak meaning where the ownership transfer registration is made in a way to exercise the security right to the above obligation.

Article 372 of the Civil Act

Supreme Court Decision 82Nu66 Delivered on October 11, 1983

[Judgment of the court below]

Defendant

Gwangju District Court Decision 84Na67 delivered on April 17, 1984

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

The grounds of appeal by the Plaintiff’s attorney are examined.

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion that the provisional registration and ownership transfer registration made in the name of the defendant for the real estate in this case were passed through security of KRW 42,784,00 for the plaintiff's obligation to refund the purchase price to the defendant. Since the plaintiff's obligation was completely repaid and terminated due to deposit of the total amount of the above obligation, the defendant is obligated to cancel the above provisional registration and ownership transfer registration. The court below rejected the plaintiff's assertion that the plaintiff was not entitled to deliver the above provisional registration and ownership transfer registration under the agreement between the plaintiff and the defendant on December 8, 1980 for the relation registered in the name of another person, even though the plaintiff sold to the defendant under the agreement between the plaintiff and the defendant, and the plaintiff did not transfer the ownership transfer registration as to the real estate in this case (No. 1 omitted), dry field (No. 2 omitted), dry field (No. 1,091 square field), dry field (No. 2 omitted), 1,428 square meters from the above provisional registration.

However, as determined by the court below, if a provisional registration as to the real estate in this case as a security for the payment of the purchase price obligation is made through a provisional registration and the above obligation is not repaid, the obligation relationship is extinguished unless the principal registration based on the provisional registration is made at maturity, and unless the ownership of the real estate in this case belongs to the defendant who is the obligee, it cannot be deemed that there was an agreement for payment in kind. Rather, it is reasonable to presume that the so-called settlement procedure for the registration of ownership transfer is a weak meaning where the ownership transfer is made in favor of the execution of the above obligation. Thus, the court below should have deliberated on the existence of a special agreement as to the real estate in this case in order to recognize that the ownership transfer registration under the name of the defendant was made in accord with the above obligation, and the court below rejected the plaintiff's assertion without any sufficient decision as to this point, and there is no error of law in the misapprehension of legal principles or omission of legal reasoning, and even if the court below accepted the witness witness's statement as to the above real estate in this case under the name of the plaintiff and the defendant's testimony.

Therefore, the judgment of the court below is reversed in accordance with Article 12 (2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and the case to be tried again is remanded to the Panel Division of the Gwangju District Court. It is so decided as per Disposition by the assent

Justices Kim Jong-sik (Presiding Justice)