[2] The duty to consent of a third party who has an interest in the registration procedure for cancellation registration

[2] Even if a third party who has an interest in the registration procedure for the cancellation registration is required to give his/her consent, there is no reason to comply with the request for consent unless the third party has an obligation under the substantive law in relation to the person entitled to registration, and the third party has an obligation to give his/her consent.

2. First, the court below held that, with respect to the part where the plaintiff against the defendant Park Young-ok seeking consent to the cancellation registration of the superficies creation registration of this case on the premise that the same defendant is a person with superficies in relation to the land of this case and is a third party interested in the registration, the registration which cannot be compatible with the cancellation registration is merely subject to cancellation registration on the premise that the cancellation registration of the superficies creation registration of this case is not a third party, but the registered titleholder is a third party with an interest in the registration of the restoration registration. In the case of superficies, the registration of the creation of superficies of this case seeking restoration and the registration of the creation of superficies in the name of defendant Park Young-ok cannot be compatible with the registration of the creation of superficies in the name of defendant Park Young-ok because the registration of the creation of superficies in the name of defendant Park Young-ok cannot be claimed for the execution of the procedure for the cancellation registration, and therefore, the above part of the lawsuit against the defendant Park Young-ok is unlawful as a claim against the non-party entitled

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable (However, the term of the plaintiff's superficies is for 30 years from November 19, 197, and the superficies of defendant Park Young-ok is for 30 years from September 5, 1998, and the duration does not overlap partially. Thus, even if the plaintiff's cancellation registration of the superficies creation of this case has been made, it cannot be deemed as a third party with an interest in the registration within the extent because the defendant Park Young-ok's exercise of superficies is not likely to cause damage because there is no obstacle in exercising the superficies, but the conclusion that the defendant Park Young-ok is not a third party with an interest in the registration, the other party to the request for consent is not the same). In the registration of the cancellation, there is no error of law by misapprehending the legal principles as to the third party with an interest in the registration in the registration of the cancellation.

Meanwhile, according to the records, the court of first instance or the court of original instance, which is the fact of the cause of the claim, was merely a trial on the issue of whether the termination of each of the instant mortgage contract and superficies contract was made due to the act of deception by the former, the non-party 1 and the defendant Park Young-ok as alleged by the plaintiff (the plaintiff first sought cancellation of the registration of creation of superficies in the name of the defendant Park Young-ok, but the claim was modified at the court of first instance, and the first instance allowed modification of the lawsuit, and then the court of first instance determined on the merits at the end of the deliberation on the above issue). As to the qualification of the party to the defendant Park Young-ok or the method of cancelling the registration of creation of superficies in the name of the defendant Park Young-ok, the court of first instance revoked this part of the judgment of first instance

However, in light of the records [A evidence 15-1, 2 (Evidence of Judgment, 1541) and copy of the complaint (record 1541)], Nonparty 1, along with the crime of fraud decided by the court below, forged and exercises a mortgage-backed contract with a creditor and a mortgagee in the name of the defendant company as the defendant Park Young-ok, and confirmed on July 24, 2002 as a judgment of conviction on July 24, 2002. These registration records are the same as the registration of creation of superficies in the name of defendant Park Young-ok. However, in the situation that the plaintiff again filed a separate suit against the defendant Park Young-ok on January 22, 2003, which was prior to the closing of argument in the court below, and the pleading is proceeding, such as attaching and submitting materials concerning the above criminal judgment, and the court below did not accept the conclusion of the court below's decision as to the non-performance of legal obligation or non-performance of legal obligation.

3. Furthermore, the court below rejected the above part of the claim on the ground that there is no evidence to prove that Defendant Park Young-ok knew that the termination of each of the instant mortgage contract and superficies contract was made by deception by deceiving the Plaintiff by deceiving the Plaintiff, on the premise that the same Defendant against Defendant Park Young-ok was a third party having interests in the registration as a mortgagee for the instant land, seeking consent for each registration for the establishment of a neighboring mortgage and for the cancellation and recovery of superficies registration, and on the premise that he was a third party having interests in the registration as a superficiary, the court below also rejected the above part of the claim on the ground that Defendant Park Young-ok had no knowledge that the termination of each of the instant mortgage contract and superficies contract was made by deception.

Even if a third party who has an interest in the registration procedure for the cancellation registration is required to give his consent, there is no reason to comply with the request for consent unless the third party has an obligation under the substantive law to give consent in relation to the person entitled to registration (see, e.g., Supreme Court Decisions 78Da2040, Nov. 13, 197; 85Meu203, May 26, 1987).

In light of the above legal principles and records, the judgment of the court below is just and acceptable, and it is not erroneous in the misapprehension of legal principles as to the duty of consent of a third party who has an interest in the registration of cancellation, and there is no error in the misapprehension of legal principles as to the duty of consent of the third party who has an interest in the registration of cancellation, on the ground that there is no evidence that Defendant Park Young-ok was aware that the contract of each of the mortgage of this case and the termination of superficies was made by deception.

Supreme Court Decision 71Da1285 delivered on August 31, 1971, and Supreme Court Decision 95Da39526 delivered on September 30, 1997, etc. cited as the grounds of appeal, where the registration is cancelled unlawfully without any cause by means of forging the registration application document by means of forging it, etc. and without any cause relationship, and such cancellation registration is invalidated, the purport of the registration is that a third party with a interest in the registration is liable to give consent necessary for the procedure for recovery registration of the person entitled to registration without asking his good faith and bad faith, and thus, it is inappropriate to invoke the registration differently from this case.

4. Meanwhile, the judgment of the court below which held that the part of the court below which sought implementation of the procedure for the registration of creation of a collateral right and the cancellation of the registration of the creation of superficies on shares 8,153/10,944 of the land of this case against the defendant company is unlawful, and that the part of the contract for establishment of a collateral right and the contract for creation of superficies, which form the basis for the registration of creation of a collateral right and the registration of creation of superficies under the name of the defendant Park Young-ok, are forged, and that the registration of creation of a collateral right and the registration of creation of superficies are null and void. Thus, the judgment of the court below which rejected the claim that the defendant Park Young-ok was a third party with an interest in the registration and has a duty to accept the registration of cancellation, did not state in the

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)