[부동산가등기및소유권이전등기말소][고집1968민,283]
Action against the non-paragraph (1)
Even if there is a dispute over a specific right or legal relationship, there is no benefit in the protection of rights in the lawsuit filed in violation of the agreement not to file a lawsuit
Article 226 of the Civil Procedure Act
November 5, 1968 (Supreme Court Decision 68Da1665 delivered on November 5, 1968, Supreme Court Decision 6187 delivered on November 6, 196, Decision Article 226(16)920 of the Civil Procedure Act
Plaintiff
Defendant
Busan District Court (67Ga568)
The original judgment shall be revoked.
This case shall be dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
The original judgment shall be revoked.
The defendant, on April 16, 196, will implement the procedure for cancellation registration of ownership transfer registration for the provisional registration of the right to claim ownership transfer registration based on the purchase promise as Busan District Court's receipt of registration for Busan District Court No. 8280 on April 16, 196, and for the same real estate on September 23, 196, the registration of the same court No. 23483 on April 14, 2
All the costs of lawsuit shall be borne by the defendant in the first and second instances.
In making a loan to the plaintiff on April 14, 1966 with interest rate of KRW 200,000 as of August 14 of the same year, the defendant provided this real estate as security by the form of a sales contract with a special agreement between the above maturity date for repurchase and completed provisional registration and principal registration such as entries in the purport of the claim for redemption until the above maturity date, there is no dispute between the parties. Thus, the plaintiff agreed that the principal and interest of KRW 200,000 at the market price at the time of the loan and the principal and interest of KRW 600,00 shall be returned to the substitute for real estate. This is null and void pursuant to the provisions of Articles 607 and 608 of the Civil Act, so if the above loan is repaid, the above provisional registration and the principal registration shall be cancelled at the same time, and since the plaintiff did not have any dispute over the above provisional registration and the principal and interest payment of KRW 279,084 (A) on September 12, 1967, the original registration and the original registration shall be cancelled.
Therefore, when the Plaintiff borrowed money of KRW 200,00 from the Defendant as the Plaintiff’s Director, as the Plaintiff had a substantial difference between the borrowed amount and that of KRW 600,00,00, the real estate owned by the market price was transferred to the Defendant before the Defendant and thus, the Plaintiff is disadvantageous to the Plaintiff as the borrower. Thus, even in a case where the real estate return becomes null and void as a substitute return pursuant to Articles 607 and 608 of the Civil Act, this case’s mortgage contract remains effective even if it is a case where the Plaintiff’s real estate return was invalidated as a substitute return pursuant to Articles 607 and 608 of the Civil Act. In full view of the witness’s testimony as stated in the evidence No. 6 (Withdrawal of Appeal) and the purport of the party’s pleading, the Plaintiff’s lawsuit seeking provisional registration and cancellation of the principal registration are sufficient to obtain the judgment of the court, and thus, it cannot be deemed unlawful.
Therefore, the judgment of the court below which dismissed the plaintiff's claim on the ground that it is improper to judge the remaining arguments of the parties would dismiss the plaintiff's claim on the part of the plaintiff, and it is so decided as per Disposition by applying Article 96 of the Civil Procedure Act to the burden of litigation costs.
[Attachment List omitted]
Judges Kim Ho-young (Presiding Judge)