[근저당권설정등기말소][집21(2)민,037]
(a) Whether a barge not less than 20 tons towing by another ship is authorized to register the ship; and
(b) Whether it is possible to demand the correction of a general lawsuit if the non-registered ship has been registered;
A. The barge itself, which is a mere towing by another ship due to lack of navigational capacity, is not an independent ship, but a ship to be registered.
(b) No request for correction shall be made by a general lawsuit when it has been registered that the ship which is not to be registered.
Article 6 of the Ship Act; Article 20 of the Ship Act; Article 5 of the Ship Act; Article 178 of the Registration of Real Estate Act;
Plaintiff (Counterclaim Defendant)
Jeju Bank, Inc.
Busan District Court Decision 72Na609, 610 decided January 6, 1973
The original judgment is reversed, and the case is remanded to the Daegu High Court.
As to the ground of appeal by the Plaintiff (Counterclaim Defendant)
In its reasoning explanation, the original judgment: (a) 297.91 tons in gross tonnage and net tonnage of 238.33 tons in e.g., e., her navigation engine and navigation promotion engine; (b) her economic desire and utility value; and (c) her ship used for navigation for commercial activities or for profit-making activities as stipulated in Article 740 of the Commercial Act; and (d) even if her fighting ability is not sufficient, the court below rejected the Plaintiff’s claim for registration seeking cancellation of the instant ship on the ground that it cannot be subject to registration on the ground that the instant ship is operated by towing of another ship and its economic utility value is equivalent to at least 8,00,000 won in total and has been granted for such commercial activities as above, so long as the ship was announced and transferred to the public, it shall be deemed a small-scale ship with a gross tonnage of less than 20 tons as stated in Articles 741 and 745 of the Commercial Act.
However, according to the provisions of Articles 6 and 20 of the Ship Act, a barge operated only with a gross tonnage of less than 20 tons or a single ship or an old ship shall not be a ship to be registered. A barge towed by another ship without a navigation-related engine or a navigation-related promotion engine itself is not a ship to be registered regardless of its tonnage. Thus, it is reasonable to interpret this as not a ship to be registered regardless of its tonnage. According to the provisions of Article 5 of the Ship Registry Act, the provisions of Articles 55 and 175 through 183 of the Registration of Real Estate Act shall apply mutatis mutandis to the registration of a ship, which is not a ship to be registered. If the registration of a ship is not a ship but a ship to be registered, the public official's request for correction shall not be required by a general lawsuit, such as this case. Thus, a barge itself is an independent ship under the current law, which has no navigation-related ability, and is not a ship to be registered with another ship. Thus, the judgment of the court below is reversed.
Therefore, pursuant to Article 406 of the Civil Procedure Act, it is decided as per Disposition by the assent of all participating judges.
Justices Rin- Port (Presiding Justice)