근저당권설정등기말소 청구의 소
1. The plaintiff A's lawsuit that has been changed in exchange at the trial shall be dismissed;
2. The plaintiff B's appeal is dismissed.
3...
1. On June 27, 2011, the Plaintiff sought cancellation of the registration of the establishment of the neighboring mortgage on the ground that, in the first instance trial, the registration of the establishment of the neighboring mortgage was fully repaid with respect to the real estate listed in the attached list No. 1 as the pledged property E, the Seoul Eastern District Court (Seoul Eastern District Court No. 37752, Jun. 27, 201), but on May 16, 2014 during the trial, the registration of the establishment of the neighboring right was cancelled due to the sale of the real estate by auction, the Plaintiff changed the purport of the claim to seek confirmation of the non-existence of the debt against the Defendant of E, which was secured by the above collateral security.
However, since the subject of confirmation in a lawsuit for confirmation requires that it be the current right or legal relationship, barring any special circumstance, it is not recognized that there exists a previous right or legal relationship. Thus, if the lawsuit for confirmation of non-existence of a secured obligation of the right to collateral security is cancelled, there is no benefit of confirmation as it concerns the past right or legal relationship (see Supreme Court Decision 2012Da17585, Aug. 23, 2013). Even if Plaintiff A’s assertion was cancelled on May 16, 2014, since the registration of establishment of the right to collateral security was cancelled on May 16, 2014, the lawsuit for confirmation of non-existence of the obligation of this case constitutes a matter of past right or legal relationship, and thus, it is unlawful
[In addition, it is clear that Plaintiff A has no interest in confirmation of the instant lawsuit since it filed a lawsuit of demurrer against the distribution schedule of the said voluntary auction procedure (Seoul Eastern District Court 2014Gahap104917). 2. The reasoning for this part of the judgment on Plaintiff B’s assertion is the same as that of Plaintiff B in the judgment of the first instance court, in addition to revising and adding the following description and judgment, and thus, it is consistent with the main sentence of Article 420 of the Civil Procedure Act.