[1] Whether a legal interest exists to seek cancellation of the registration of establishment of a neighboring mortgage in the course of a lawsuit seeking the implementation of the registration procedure for cancellation of the registration of establishment of a neighboring mortgage (negative)

[2] The case dismissing a lawsuit on the ground that the lawsuit has no interest in the lawsuit pending in the court of final appeal and is unlawful

[1] In the course of a lawsuit seeking the implementation of the procedure for cancellation of registration of the establishment of a neighboring mortgage, there is no legal interest to seek the cancellation of registration of the establishment of a neighboring mortgage if the registration of the establishment of a neighboring mortgage was cancelled on the ground of auction

[2] The case reversing the judgment of the court below and rejecting the lawsuit on the ground that the registration of creation of a neighboring mortgage for which the plaintiff is seeking the implementation of the procedure for registration of cancellation was cancelled on the ground of successful bid during the period of the court of final appeal, and there was no legal interest in seeking the cancellation of the registration of creation of a collateral security, and thus,

[1] Article 248 of the Civil Procedure Act / [2] Articles 248 and 437 of the Civil Procedure Act

[1] Supreme Court en banc Decision 94Nu14148 decided Oct. 17, 1995 (Gong1995Ha, 354 decided Feb. 23, 1996) 72Da2685 decided Feb. 23, 1996 (Gong1996Sang, 1123)

Plaintiff 1 and five others

Trustee in Bankruptcy, Defendant 1 and one other (Law Firm Dang Lel, Attorneys Kim Sung-sung et al., Counsel for the plaintiff-appellant in bankruptcy)

Seoul High Court Decision 2002Na5578 delivered on September 4, 2002

The judgment of the court of first instance is reversed, and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the plaintiffs.

We examine the grounds of appeal.

When the registration of the establishment of a new mortgage was cancelled on the ground of auction while the lawsuit seeking the cancellation of the registration procedure for the establishment of a new mortgage was pending, there is no legal interest to seek the cancellation of the registration of the establishment of a new mortgage.

According to the records, after the judgment of the court below which partially accepted the plaintiffs' claim, the registration of creation of a new mortgage of this case against the defendant was revoked on October 16, 2002 due to the successful bid, the plaintiffs had no legal interest in seeking the cancellation of the registration of creation of a new mortgage of this case, and therefore, the lawsuit of this case was filed in the court of final appeal because there was no benefit in the lawsuit while the appeal of this case was pending. Thus, the judgment of the court below cannot be maintained.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed. Since this case is sufficient for the court to directly decide on this case, the judgment of the court of first instance which partially accepted the plaintiffs' claims is revoked, and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae- Jae (Presiding Justice)