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(영문) 부산고등법원 2018.10.18 2018나50119
근저당권설정등기말소회복등기 등
Text

1. Of the principal lawsuit and counterclaim in the judgment of the court of first instance, the part against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) are as follows.

Reasons

1. The reasoning for the court’s explanation on this part of the facts is as follows, and this part of the corresponding part of the judgment of the court of first instance is the same as the corresponding part, and thus, this is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

Defendant B’s “Defendant B” to “Co-Defendant B of the first instance trial,” and Defendant C’s “Defendant C” to “Defendant,” respectively.

3. The establishment of a right to collateral security, which was completed on October 17, 2012 as the “establishment of a right to collateral security,” which was completed on January 18, 2012, shall be deemed to be the “establishment of a right to collateral security, which was completed on January 18, 2012.”

4 pages 14, “a sales contract made between the Defendant and the above B” is deemed to be “a real estate sales contract (No. 3) made between the Defendant and the above B.”

2. According to the facts established prior to the determination on the claim of the principal lawsuit, D, an employee of the Plaintiff, was found to have cancelled the registration of the establishment of the instant neighboring mortgage against the Plaintiff’s will as a mortgagee.

On the other hand, where a cancellation registration is null and void, a third party who has an interest in the registration is obligated to give consent necessary for the procedure for recovery registration, regardless of whether the damage was caused by good faith, bad faith, or the registration for recovery (see, e.g., Supreme Court Decision 69Da2193, Feb. 24, 1970). It refers to a person who is likely to cause damage by making a cancellation registration for a third party having an interest in the registration as referred to in this context and is recognized as having a concern over causing such damage.

(see, e.g., Supreme Court Decision 2013Da18011, Jul. 11, 2013). Since the registration of the establishment of a mortgage in the instant case was cancelled unlawfully, the registration of cancellation is null and void. Since the Defendant acquired ownership of the instant apartment (attached Form) on the registry after the registration of cancellation of the registration of the establishment of a mortgage in the instant case, it constitutes a third party with an interest in the registration.

Therefore, the defendant is therefore the plaintiff.

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