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(영문) 대법원 2015.10.15.선고 2013다70927 판결

근저당권일부이전등기말소

Cases

2013Da70927 Cancellation of the registration of partial collateral security;

Plaintiff, Appellee

Jari-do Development Co., Ltd., a lawsuit taking over the lawsuit;

(Trade Name before Change: Daewoo Motor Vehicle Sales Corporation)

Defendant Appellant

Red Automobile Sales Corporation, Inc.

The judgment below

Seoul High Court Decision 2013Na12442 Decided June 28, 2013

Imposition of Judgment

October 15, 2015

Text

The judgment of the court below is reversed.

The judgment of the first instance is revoked, and the lawsuit is dismissed. All costs are borne by the plaintiff and the defendant respectively.

Reasons

Judgment ex officio is made.

In a case where the entire registered matters of a certain registration are inconsistent with the original or latter substantive relations, registration made for the purpose of legally extinguishing the entire registration concerned is deemed to mean a registration made for the purpose of legal extinguishment. Thus, there is no legal interest in seeking cancellation of registration already cancelled (see, e.g., Supreme Court Decisions 2002Da57904, Jan. 10, 2003; 2006Da72802, Feb. 26, 2009).

According to the records, the registration of partial transfer of the right to collateral security of this case on the real estate indicated in the list of the attached real estate (1) in the judgment below, was cancelled on May 22, 2013, which was before the closing of argument in the court below. The registration of partial transfer of collateral security of this case on the real estate indicated in the list of attached real estate (2) in the judgment below was cancelled on March 15, 2013, which was before the closing

Therefore, there is no legal interest in seeking cancellation of part of the right to collateral security in this case, and thus, the lawsuit in this case is unlawful as there is no benefit in the lawsuit. Nevertheless, the court below erred by misapprehending the legal principles as to the interest in the lawsuit in the claim for cancellation registration.

Therefore, the judgment of the court below is reversed. Since this case is sufficient for the court to directly judge this case, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be filed in accordance with Article 437 of the Civil Procedure Act. The total costs of lawsuit shall be borne by the plaintiff and the defendant respectively. It is so decided as per Disposition by the assent

Judges

Justices Kim In-bok

Note Justice Kim Gin-deok

Justices Park Young-young

Justices Kim Jong-il