[입주권명의등록말소청구사건][고집1975민(1),109]
Whether or not to seek a cancellation of the registration title due to the repayment and redemption of the debt against the person registered as the title holder in the resident registry of a citizen apartment for the purpose of securing the claim.
A person registered as the title holder on the register of occupants of private apartment owned simultaneously by the Seoul Metropolitan Government kept, may seek the cancellation of the title of registration against the person registered as the title holder on the register of occupants of private apartment owned simultaneously by the Seoul Metropolitan Government. However, in this case, the registration as the title holder of the right to occupancy has been made for the security of claims, and the repayment of the debt is a prior obligation prior to the cancellation of the registration
Article 226 of the Civil Procedure Act, Article 536 of the Civil Act
Plaintiff
Defendant
Seoul Central District Court (74Gahap560) in the first instance trial
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The defendant shall receive and redeem the amount of 400,000 won from the plaintiff, thereby making a decision on February 1, 1973 as to the registration of cancellation of the transfer of the defendant's name registered in the resident registry in Seoul Metropolitan Government as of February 1, 1973 with respect to 25 ground apartment No. 3-25 ground apartment No. 3-25 ground apartment No. 10 of Jongno-gu Seoul Metropolitan Government, Jongno-gu, Jongno-gu, Seoul Metropolitan Government, for the plaintiff.
Judgment such as cancellation of the original judgment and purport of the claim
1. Judgment on the defendant's main defense of safety
Even if the plaintiff's claim is accepted, the defendant does not have a way to execute it, and eventually, this case's lawsuit is illegal as a litigation requirement. However, it cannot be viewed as a litigation requirement. The defendant's defense itself is groundless.
2. Judgment on the merits
With respect to the facts that the 10th floor of the 3rd floor and the 10th floor of the 10th floor of the 3rd floor of the 4-25th apartment of Jongno-gu Seoul Metropolitan Government, Jongno-gu, Seoul (hereinafter referred to as the 8th floor of the contract) is registered as the name of the defendant in the apartment ledger in the apartment ledger in the Seoul Metropolitan Government of the non-party
First, the Plaintiff’s registration of the name of the Defendant was made by citing the above documents necessary for the registration of the Plaintiff’s name, seal, etc., and sought cancellation thereof by asserting that it is null and void. Thus, Gap’s certificate No. 2, Eul’s certificate No. 3 (criminal record), Eul’s certificate No. 1, and Eul’s certificate No. 4 (written application for approval for transfer of name), and Eul’s certificate No. 6-1, 3, and 5-1 (written evidence No. 5) are presumed to have been established on the part of the Defendant’s office. In light of the above fact that the Plaintiff’s registration was made under the above name of the Plaintiff’s name and the above seal No. 1 and the above seal No. 2 were not recorded on the above 0-1 (written contract) and the Plaintiff’s ownership was not transferred to the Defendant by 10-1, and the Plaintiff was not entitled to acquire ownership from 10-1,000 won.
Thus, it is recognized that the transfer of a building before the defendant was a procedural defect due to the forgery, etc. of related documents, but it is deemed that the plaintiff's transfer of the above status of the building to the defendant is consistent with the substantive legal relationship that the plaintiff transferred or relocated the above status of the building to the defendant. Therefore, the plaintiff's above assertion is groundless.
Then, the Plaintiff asserts that the pre-sale of the building was made by the pre-sale of accord and satisfaction, and that the above status of the previous building at the time of the pre-sale was equal to KRW 1,300,000,000, and that the pre-sale of the building was null and void as an unfair legal act. Thus, according to the result of appraisal at the market price on the pre-sale of the building at the trial, the Plaintiff asserted that the pre-sale of the pre-sale of the building was invalid as an unfair legal act. Thus, it can be acknowledged that the pre-sale of the above status at the time of October 7, 1972 was equivalent to KRW 1,350,000, the pre-sale of the building at the time of the above pre-sale, and that the pre-sale of the building at the time of the pre-sale cannot be readily concluded to be invalid as an unfair legal act without proof that the above status was 60,000,000 won under the pre-sale of the building at the time of the above pre-sale.
Finally, the plaintiff sought the cancellation of the above registration in the name of the defendant due to the receipt and repayment of the above secured debt against the defendant. However, in the registration of this case made for the purpose of securing the claim, since the repayment of the debt is prior to the cancellation of the above registration, it cannot be claimed for the cancellation of the above registration due to the above repayment and repayment. Therefore, the plaintiff's above assertion is groundless.
Therefore, the plaintiff's claim of the principal lawsuit shall be dismissed without any reason, and the judgment of the original court with the same conclusion is just, and the plaintiff's appeal is without merit, and the costs of appeal shall be dismissed. It is so decided as per Disposition with the plaintiff's charge against the plaintiff.
Judges Kim Hong (Presiding Judge)