상가건물임차권등기말소
1. Revocation of a judgment of the first instance;
2. The instant lawsuit shall be dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Determination ex officio as to the legitimacy of the instant lawsuit
A. Legal reasoning is that registration of the lease of a commercial building is made by the execution of the lease order, if the court recognizes the application as reasonable by the lessee's application for the lease order.
(Article 6(1) of the Commercial Building Lease Protection Act (Article 6(1) of the Commercial Building Lease Protection Act). If the lease registration has been made on the basis of the court’s order of lease registration, in order for the lessor to cancel the registration, the lessor shall file an application for objection or cancellation on the decision of the order of lease registration and obtain a judgment to cancel the said decision from the court,
(See Article 6(3) of the Commercial Building Lease Protection Act, Article 280 of the Civil Execution Act, the procedures for the decision of provisional seizure, and the revocation thereof shall apply mutatis mutandis). As above, inasmuch as special measures are provided for in the compulsory execution procedure regarding the cancellation of the lease registration, the owner, etc. of the object of lease may seek cancellation only by the method of filing an objection or an application for cancellation against the decision of the lease registration, and filing a lawsuit seeking cancellation of the lease registration separately against the lessee
B. According to the statement in Gap evidence No. 3, it is recognized that the registration of the right to lease stated in the purport of the claim was made based on the court's order of lease registration according to the defendant's application for the lease of real estate stated in the separate sheet from the plaintiff, and on the other hand, the plaintiff, the lessor, filed the lawsuit against the defendant, the lessee, seeking the cancellation of the above lease registration
Therefore, in light of the legal principles as seen earlier, it is not a trial procedure on preservative measures under the Civil Execution Act, such as cancellation or objection against the order of lease registration, but a separate trial procedure.