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(영문) 서울서부지방법원 2015.12.03 2015가단210203
근저당권말소
Text

1. The part concerning the claim for the confirmation of existence of an obligation among the lawsuits in this case shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3...

Reasons

1. A lawsuit seeking confirmation of the legality of the part of the claim for confirmation of the existence of a debt is permissible when the Plaintiff’s right or legal status is the most effective and appropriate means to resolve the dispute. In addition, seeking confirmation that the mortgagee of a collateral security does not have any secured debt based on the mortgage contract, and seeking cancellation of the registration of a collateral security on the ground that there is no secured debt in the case of seeking cancellation of the registration of a collateral security, the right to seek cancellation of the registration of a collateral security on the ground that the mortgagee of the collateral security has no secured debt, and thus, seeking confirmation of the existence of the secured debt based on the mortgage contract cannot be said to have a benefit of confirmation.

(See Supreme Court Decision 200Da5640 Decided April 11, 200). Accordingly, it is unlawful for the Plaintiff to seek a cancellation registration procedure for each registration of establishment of a neighboring mortgage (hereinafter “instant collateral security registration”) which was completed on May 20, 2008 by the Yongsan District Court No. 21496 on each real estate listed in [Attachment List Nos. 1 and 2] (hereinafter “instant real estate”) and to seek that there is no obligation to be secured against the instant collateral security, as there is no benefit of confirmation.

2. Part requesting cancellation of the registration of creation of a neighboring mortgage;

A. The Plaintiff asserts that the registration of the instant collateral security in this case is null and void, since the Defendant conspireded to forge the document to establish a mortgage with the network C or was aware of the forgery of the network C.

In the event that the establishment registration of a neighboring mortgage has been completed, the registration is presumed to have been lawful and shall be deemed to have publicly announced the true state of rights, so the other party who asserts that the registration was unlawful is responsible to prove the objection to the reversal of the presumption, and the act of establishing a right to collateral security.

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