[원인무효로인한근저당권설정등기말소][집32(3)민,104;공1984.8.15.(734)1276]
A. Whether the establishment of a neighboring mortgage subject to the request for cancellation is subject to ex officio investigation by the court on the issue of ex officio cancellation due to the successful bid (negative)
(b) Where it is difficult to believe that the contract to establish a mortgage and the other party to the mortgage have the right of representation which was concluded by the wife of a local government who has been granted a right of representation.
A. If the registration of creation of a mortgage in the name of the defendant, the plaintiff of which was seeking the execution of the procedure for registration of cancellation, became ex officio due to a successful bid during the lawsuit, and there was no benefit to seek the execution of the procedure for registration of cancellation, such reason shall be changed to the registration of cancellation of ownership transfer due to the successful bid, the need to maintain the previous claim, and the plaintiff's assertion should have been proved before the closing of argument, and it shall not be deemed that the court should have discovered and investigated the previous claim ex officio at the time of the closing
B. Even in a case where a common right of attorney has been granted to a wife of an internal combustion, the husband’s delegation of the expenses for marriage of the husband to the wife of the husband in South Korea to borrow the expenses for marriage of the husband in the registry and the granting of the right of attorney necessary for offering the property as security for a large amount of existing obligations belongs to this example. In addition, if the wife could easily find out the circumstances that the husband’s seal impression or registration certificate can be easily obtained by the husband, the other party to the contract on collateral security could easily obtain the husband’s seal impression or registration certificate, the fact that the husband’s seal impression, seal impression, power of attorney, and partial registration certificate, etc. were granted to the husband’s wife, and the Defendant cannot be justified in believing that the husband had the right of representation for the establishment of a collateral security.
A. Article 265 of the Civil Procedure Act: Articles 126 and 827 of the Civil Act
[Judgment of the court below]
Beneficiary: Equitable
Daegu High Court Decision 80Na940 delivered on January 28, 1981
The judgment of the court below is reversed, and the case is remanded to Daegu High Court.
The Plaintiff’s attorney’s ground of appeal is examined.
With respect to No. 1:
If the registration of creation of a neighboring establishment in the name of the defendant, the plaintiff of which was seeking the registration procedure for cancellation, had no interest in demanding the execution of the registration procedure for cancellation, which was revoked ex officio due to the successful bid during the lawsuit, as in the theory of lawsuit, such reason should have been proved by the plaintiff of interest prior to the completion of the pleadings in the court below, by changing the previous claim to the application for cancellation registration for cancellation of ownership transfer due to the successful bid, and by the plaintiff of interest, it cannot be deemed that the court below should have discovered and investigated ex officio at the time of closing of pleadings
According to the records, since the plaintiff never asserted the fact that the registration of the establishment of a neighboring establishment in the name of the defendant who is seeking the implementation of the procedure for registration of cancellation in this case was cancelled due to a successful bid during the lawsuit, the registration of the establishment of a neighboring establishment in the defendant's name was cancelled due to the successful bid during the lawsuit at the time of the conclusion of the pleadings in the court below, the court below's failure to examine whether the registration was cancelled ex officio is reasonable, and there is no error of law that did not perform its ex officio investigation, and the party members' decisions cited in the theory of lawsuit (Law No. 4293 Residents and 599, April 11, 1972, etc.) are different from the case in this case, and therefore it cannot be a proper precedent.
With respect to the second ground:
According to the reasoning of the judgment below, the court below acknowledged that the plaintiff's act of establishing a non-party 1's interest on the non-party 1's own land was 80,000 won or more of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 7 shares of the non-party 1's share of the non-party 1's share of the non-party 7 shares of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the non-party 1's share of the defendant 1's share of the plaintiff 1's share of the deceased.
However, even if the defendant, who was aware that the non-party 1 was the party to whom the non-party 1 was the party to whom the non-party 1 was the party to whom the non-party 1 was the party to whom the non-party 1 was the party to whom the non-party 1's right of representation was the party to whom the non-party 1 was the party to whom the non-party 1's right of representation was the party to whom the non-party 1's right of representation was the party to whom the non-party 1's right of representation was the party to whom the non-party 1's right of representation was the party to whom the non-party 1 was the party to whom the non-party 1's right of representation was the party to whom the non-party 1's right of representation was the party to whom the non-party 1 was the party to whom the non-party 1's right of representation was the party to whom the non-party 1 was the party to whom the plaintiff had been the party's right of representation.
Therefore, in light of the above circumstances, the court below determined that there was a justifiable reason for the defendant to believe that the defendant was authorized to conclude a mortgage contract on behalf of the plaintiff on behalf of the non-party 1, and thus, the measures that recognized his/her own responsibility are not incomplete or incomplete, and there is no error of law by misapprehending the legal principles as to the requirements for establishment of a speech agent under Article 126 of the Civil Act, which has the right of representation as a basic right
Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Il-young (Presiding Justice)