(영문) 부산지방법원 2016.11.30 2016가단51633

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(영문) 부산지방법원 2016.11.30 2016가단51633

근저당권말소

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1. The instant lawsuit shall be dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On June 19, 2009, C completed the registration of creation of a mortgage (hereinafter “registration of creation of a mortgage of each of the instant cases”) with respect to each of the real estate listed in the separate sheet (hereinafter “instant real estate”) owned by the Defendant on the part of the obligor C, the mortgagee, the Defendant, and the maximum debt amount of KRW 42,00,000, under Article 39100, and sold the instant real estate to the Plaintiff on November 17, 2011.

B. The Defendant filed an application for voluntary auction of the instant real estate with Busan District Court D based on the foregoing right to collateral security, and in the above auction procedure, the instant real estate was sold to E on June 3, 2016, and the registration of establishment of each of the instant real estate units on the same day was revoked on the grounds of sale due to voluntary auction.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1, 2, and 3-2, the purport of the whole pleadings

2. Determination

A. The Plaintiff asserted that the secured debt of each of the instant mortgages was only five million won, and sought the cancellation of the registration of the establishment of each of the instant mortgages.

B. Ex officio, while the lawsuit was brought to seek the cancellation of the registration procedure for the registration of the establishment of a neighboring mortgage, the registration of the establishment of a neighboring mortgage was cancelled on the ground of auction during the auction procedure (see, e.g., Supreme Court Decisions 2002Da57904, Jan. 10, 2003; 2007Da34135, Sept. 6, 2007). As seen earlier, since the registration of the establishment of a neighboring mortgage of this case was cancelled on the ground of a voluntary auction, the plaintiff did not have any legal interest to seek the cancellation of the registration of the establishment of a neighboring mortgage of this case.

3. As such, the instant lawsuit is unlawful and thus, it is so decided as per Disposition by the assent of all participating Justices.

참조판례

-대법원 2003. 1. 10. 선고 2002다57904 판결

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