[채권존재확인청구사건][고집1977민(2),365]
Cases where it is recognized that there is no interest in confirmation
In the lawsuit to confirm that the maximum debt amount secured by the right to collateral security against the non-party owned by the non-party is included in the plaintiff's claim against the non-party, even though the judgment in favor of the plaintiff was finalized by the court in favor of the non-party, which is not only a third party who has no interest in the above establishment registration of a mortgage, it is not possible to be a temporary means to remove simple economic uncertainty, not a legal relationship with the plaintiff, but it cannot be a valid and appropriate means to remove the plaintiff's right or legal status, so eventually, the lawsuit in favor of the plaintiff
Articles 228 and 205 of the Civil Procedure Act
Supreme Court Decision 74Da2036 Delivered on April 26, 1977
Plaintiff
Defendant 1 and eight others, a litigation taking over by the deceased Nonparty 1
Jeonju District Court of the first instance (73Gahap92)
Supreme Court Decision 74Da2036 Delivered on April 26, 1977
The judgment of the first instance shall be revoked.
The plaintiff's objection suit is dismissed.
The total costs of litigation shall be borne by the plaintiff.
The judgment of the first instance shall be revoked.
With respect to real estate in the attached list owned by Nonparty 1 Co., Ltd., which was registered on May 24, 1971 as the registry office of Jeonju District Court No. 1131, the Defendant confirmed that the amount of KRW 9 million against the above non-party company of this case is the Plaintiff’s claim among the maximum amount of 12 million won for establishing mortgage in the name of the obligee’s right to use the creditor.
All the costs of lawsuit shall be borne by the defendant.
The fact that the establishment registration of a mortgage under the name of the defendant in the lower court (Nonindicted 12,00,000 won of maximum debt amount) was made with respect to the real estate indicated in the attached list owned by Nonparty 1 Co., Ltd. (hereinafter referred to as “Nonindicted 1”) on May 24, 1971, the Jeonju District Court No. 11311, which was accepted on May 24, 1971, had no dispute between the parties. As such, the plaintiff asserts that the claim against the above Nonparty 1 was included in KRW 9,00,000,00, and thus, the claim against the above Nonparty 1 was confirmed. Thus, it is first possible for the plaintiff to request the confirmation as alleged by the plaintiff. Furthermore, it is necessary to ex officio examine whether there is a benefit in the confirmation of the lawsuit seeking the confirmation, and it is necessary to remove the legal status of the plaintiff’s current legal relationship with the plaintiff and the defendant, even if there is no need to take place only between the plaintiff and the defendant. It is also necessary to establish the legal status of the present legal relationship between the defendant.
In other words, even if the legal status is determined by the confirmation judgment, it is not allowed to file a lawsuit for confirmation that the dispute remains for legal remedy, i.e., where the dispute remains for legal remedy.
In addition, in the case of this recommendation, the plaintiff has the right to make a claim for confirmation as argued by the non-party company, and as a result, the defendant's right to make a claim for confirmation immediately before removal of his legal principal and interest as a lawsuit, the registration of creation of a mortgage in the attached list owned by the non-party company includes 9,00,000 won of the maximum debt amount, which the plaintiff holds with respect to the non-party company, and thus, the claim between the plaintiff and the non-party company and the non-party company cannot be confirmed as the plaintiff's right to claim confirmation against the non-party who is not the non-party company. Even if the plaintiff denies the claim and the debt relationship between the non-party company and the non-party company, even if the third party denies it, the plaintiff's mere economic interest (not the legal relation) cannot be a means to temporarily remove the uncertainty of the plaintiff's legal interest, and even if the plaintiff removal of the real estate in this case, it cannot be said that the plaintiff's legal interest in the registration of creation of a mortgage cannot be immediately confirmed as the plaintiff's right.
Ultimately, since the plaintiff is not only a party entitled to seek confirmation of this case, but also there is no interest in confirmation that is obtained by this case, it is unnecessary to examine the plaintiff's assertion on the merits. Thus, the decision of the court below that dismissed the plaintiff's claim on the grounds of different opinions from the party members should be dismissed. Thus, the decision of the court below that dismissed the plaintiff's claim is unfair and dismissed, and the total costs of the lawsuit are assessed against the plaintiff.
Judges Noh Byung-man (Presiding Judge)