Whether a co-owner can establish a right to collateral security by separating only his/her share in the right to collateral security.

Co-owners are not necessarily required to create the right to collateral security on the whole property, but each co-owner can create the collateral security by separating only his co-ownership right without the consent of the other co-owners.

Articles 263 and 264 of the Civil Act

Plaintiff 1 and three others

Seoul Special Metropolitan City Agricultural Cooperatives

Seoul Central District Court (71 Gohap2004) in the first instance trial

The original judgment shall be modified as follows:

On December 10, 1969, the defendant implemented the procedure for cancellation of the registration of the establishment of a neighboring mortgage-holder of the right to collateral security (mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage 850,000 won (mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage 22, 22 and juice-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu 10

The plaintiffs' remaining claims are dismissed.

The costs of lawsuit shall be divided into two parts through the first and second trials, and one of them shall be the plaintiffs, and the remainder shall be the defendant's each.

The plaintiffs' legal representative will implement the procedure for cancellation registration of the establishment registration of the mortgage of the Seoul Western District Court No. 68546, 850,000 won, which was received by the Seoul Western District Court, on December 10, 1969, on the 1969 No. 68546, Dec. 10, 1969.

The court costs are assessed against the defendant.

The defendant¡¯s attorney shall revoke the original judgment.

The plaintiff's claim is dismissed.

The court costs are assessed against the plaintiffs through the first and second trials.

1. On December 10, 1969, the establishment registration of a mortgage on the part of the original purport stated in the purport of the claim is not in dispute between the parties concerned. The establishment registration of a mortgage on the ground of the same mortgage-mortgage-based contract No. 68546,00 won on December 10, 1969.

2. Meanwhile, when comprehensively considering the statements in Gap evidence Nos. 1-2 (Certified Copy), 2 (No. 1-2), 3-2 (No. 2) and 3-3 of the same evidence which can be recognized as the authenticity by the testimony of non-party No. 2 of the witness of the court below, and the testimony of the witness of the court below, the real estate was originally owned by the non-party No. 1. The non-party died on Oct. 24, 1965, and thus the plaintiff and the non-party No. 3 jointly inherited the real estate. The non-party No. 3 concluded a mortgage contract with the defendant on Dec. 10, 1969 under the name of the above deceased who died on Dec. 10, 1969, and concluded a mortgage contract with the non-party No. 1,23,6 of the deceased's name as to the real estate as seen above by the non-party No. 4 of the court below's judgment.

3. Defendant 3’s attorney, as Nonparty 1’s children or the rest of the plaintiffs’ children, concluded the above mortgage establishment agreement with the plaintiffs’ consent. Thus, the above establishment registration on the ground of the above establishment registration is a valid registration consistent with the substantive legal relationship. Thus, according to the above evidence No. 2, the status relationship between Nonparty 3 and the plaintiffs is identical to the above assertion by the defendant’s attorney, but there is no evidence to acknowledge that the above defense by the defendant’s attorney was obtained prior consent by the plaintiffs as to whether he was delegated by the plaintiffs, as otherwise alleged in the above assertion by the defendant’s attorney. Thus, the above defense by the defendant’s attorney cannot be accepted without merit.

4. However, according to the above evidence Nos. 2 and 12, Plaintiff 1 is the wife of the deceased non-party 1, and Non-party 3 is the head of the Dong and the family heir, Plaintiff 2, 3, and 4, as his father's wife, were already born at the time of the death of Non-party 1, and are not in the same family register. Thus, each share in which the plaintiffs jointly inherited the real estate is owned by the plaintiffs, is obvious that it is 11 minutes and 6, 11 minutes and 11 minutes and 11 minutes and 11 minutes and 11 minutes of the rest of the plaintiffs (According to the evidence No. 4-1 and 2 of the deceased non-party 1 on December 22, 1971, the transfer registration of the ownership of the plaintiffs and non-party 3' joint names was completed for the reason of the above inheritance from the deceased non-party 1 on December 22, 1971).

The registration of the establishment of a neighboring mortgage is a registration of invalidation made without source of title only for the portion completed with respect to 11 minute 5 (2/11+1/11 +1/11) shares owned by the plaintiffs. As seen earlier, with respect to the portion completed with respect to 11 minute 6, which is the shares owned by the non-party 3, the registration shall be deemed effective in accordance with the substantive legal relationship even if there is any defect in the registration procedure, as seen earlier.

5. The plaintiffs' representative asserts that the act of establishing a collateral security shall be effective in accordance with the substantive legal relationship as to the right of 6/11 shares, and that the act of establishing a collateral security shall not be held separately for one co-owner's debt, so the act of disposing of the joint property requires the consent of all co-owners. In this case, even though the non-party 3 has a right to own share on the real property, the right to own share is not specified only for the establishment of a collateral security, but also for the establishment of a collateral security right. The non-party 3's act of establishing a collateral security right shall be deemed valid in accordance with the substantive legal relationship as to the right of 6/11 shares, which are own shares, and since the non-party 3 has not obtained the consent of the plaintiffs as to the right of 5/11 shares of the remaining co-owners, the part concerning the right to own share should not be revoked without the consent of the other co-owners, and the part concerning the right to own share can not be revoked without the consent of the plaintiffs.

6. Therefore, the defendant is obligated to implement the procedure for cancellation registration of the registration of the establishment of the above right to collateral security, which had been completed with regard to 11/5 of the shares of the plaintiffs in the real estate, to the plaintiffs. Thus, the plaintiffs' claim on the principal lawsuit is justified within the above recognized limit, and the remainder is reasonable, and it is dismissed. The original judgment which differs from the original judgment is unfair, and the defendant's appeal against it is reasonable within the above recognized limit, so the original judgment shall be modified, and it is so decided as per Disposition by applying Article 89, 92, 93, and 96 of the Civil Procedure Act to the cost of lawsuit.

Judges Kim Yong-chul (Presiding Judge)