[담보취소결정에대한재항고][집19(2)민,213]
The case holding that there was an error in the misapprehension of legal principles as to the extinguishment of security grounds.
In this case, the security was provided as a condition of suspending the progress of the auction case of real estate rent until the appellate court's decision on the existence of a claim is rendered. In this case, in the above claim for confirmation of existence of a claim, there was a final judgment on a partial failure of the collateral obligor, and in a case of raising an objection against the decision on the commencement of auction of real estate, the original decision premised on the extinction of the collateral cause is erroneous in the misapprehension of legal principles as to the extinguishment of the collateral cause.
Article 115 of the Civil Procedure Act
Re-appellant
Other Party
Seoul High Court Decision 71Ra100 delivered on May 6, 1971
The original decision shall be revoked and the case shall be remanded to the Seoul High Court.
As to the ground of reappeal by the re-appellant:
According to the records, this case's security was provided as a condition of suspending the progress of the auction auction case of the Daejeon District Court 65Ma162 real estate until the appellate court's judgment rendered on the claim for confirmation of existence of the obligation. The original decision is erroneous in the misapprehension of legal principles as to extinguishment of the security, which is based on the premise that the security ground has ceased, even though there is no proof of the ground to deem that the security ground has consented or consented to the Re-appellant's cancellation of the security, the security right holder is deemed to have ceased to exist. However, in the case of the above claim for confirmation of existence of the obligation, even in the case of an objection against the order for commencement of auction of the above real estate, the other party, who is the secured right holder, was also final and conclusive, and even in the case of an objection against the order for commencement of auction of the above real estate, even if the auction court's decision was revoked and the request for auction cannot be found to have become final and conclusive, and there is no ground to revoke the original decision.
Therefore, it is so decided as per Disposition by the assent of all participating judges pursuant to Articles 413(2) and 406 of the Civil Procedure Act.
The two judges of the Supreme Court (Presiding Judge) the Red Net Sheet