Whether a person who is not a party to a contract establishing a right to collateral security has the standing to file a claim for the cancellation of the registration of creation of a right to collateral security on the ground of the extinguishment of the secured obligation, etc. (negative)

The previous owner of a real estate on which the right to collateral was established may file a claim for the cancellation of the registration of establishment of a mortgage on the basis of his ownership and on the ground that the obligation under the right to collateral was extinguished or the cause was null and void. However, the previous owner of a real estate or the current owner of a real estate or the debtor for the obligation under the right to collateral security cannot be deemed to be an interested party on the register which has a direct legal interest in the registration of cancellation of the right to collateral security, and therefore there is no standing to file

Article 51 of the Civil Procedure Act, Articles 186, 357, and 369 of the Civil Act

Plaintiff (Attorney Kim Do-chul, Counsel for the plaintiff-appellant)

Defendant

August 22, 2008

1. The instant lawsuit shall be dismissed.

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

The defendant will implement the procedure for the cancellation registration of the establishment registration of a neighboring establishment, which was made on December 8, 2003 by the Daejeon District Court No. 142199, with respect to the land size of 992 square meters in Daejeon Seo-dong ( parcel number omitted).

According to the evidence evidence No. 1, as to the real estate stated in the claim of the non-party 1 (hereinafter “the instant real estate”), the Daejeon District Court (the Daejeon District Court No. 142199, Dec. 8, 2003) completed the registration of establishment of a collateral security (hereinafter “registration of this case”), which was based on the mortgage contract on the 5th of the same month as to the non-party 2, the defendant, the debtor, and the maximum debt amount of KRW 170,000,00,000, and thereafter, the registration of establishment of a collateral security (hereinafter “registration of this case”) was completed on May 27, 2004 by the court No. 51911, May 25, 2004, which was replaced by the debtor from the above non-party 2 to the plaintiff.

The plaintiff is the cause of the claim of this case. ① The real estate of this case was actually purchased in the name of Nonparty 2 with profit margin and purchased in the name of Nonparty 1. Nonparty 2 borrowed KRW 150 million from the defendant to prepare a purchase price of the real estate of this case, and registered this case for the purpose of securing the obligation to return borrowed money. Nonparty 2 purchased the real estate of this case and repaid the real estate to the defendant as collateral, and then the secured obligation of this case was extinguished. ② Even if Nonparty 2 did not fully repay the secured obligation of KRW 150 million borrowed from the defendant, the defendant was paid KRW 75 million from the plaintiff, and thereby, the secured obligation of this case was extinguished. ③ Even if the secured obligation remains, the defendant exempted the above secured obligation of this case and entered into an agreement to cancel the registration of this case, and ④ the obligation of Nonparty 2 and Nonparty 2 by deceiving the defendant from the defendant's obligation of this case.

However, prior to the determination on the merits, the previous owner of the real estate on which the right to collateral security was established may file a claim for the cancellation of the registration of the establishment of the right to collateral security on the ground of the termination or invalidity of the cause of the respective secured obligation based on his ownership. However, there is no evidence to deem the Plaintiff as the previous owner of the real estate or the present owner of the real estate or the party under the said right to collateral security contract. Rather, according to the above facts, the Plaintiff is merely a debtor with respect to the secured obligation under the above right to collateral security and cannot be deemed as an interested party on the registry having a direct legal interest in the registration of the cancellation of the right to collateral security. Thus,

Therefore, the lawsuit of this case is filed by a person who is not qualified as a party and is unlawful, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Lee Sung-chul