(영문) 창원지방법원 밀양지원 2017.02.08 2016가단10065

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(영문) 창원지방법원 밀양지원 2017.02.08 2016가단10065

근저당권말소

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. The Plaintiff was a temple located in the instant real estate, etc., and was created by D around 1989, and registered with A Religious Organizations on March 19, 2003. On April 23, 2012, the Plaintiff changed the name of the temple from A Religious Organizations E to A Religious Organizations B.

A Religious Organizations appointed D Company F as the Plaintiff’s well-known person from January 24, 2008 to January 23, 2012, and May 10, 2012 to May 10, 2012, and F Company succeeded to the Plaintiff’s creative status on May 1, 2012.

B. On May 28, 2013, the Defendant completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage”) with respect to the instant real estate owned by the Plaintiff on April 26, 2013, based on a contract to establish a mortgage (hereinafter “instant mortgage contract”) on April 26, 2013.

【Ground of recognition】 The fact that there has been no dispute, Gap Nos. 1 and 2 (including Serial number), Eul’s 8, the purport of the whole pleadings

2. The F, the representative of the Plaintiff’s assertion, did not conclude the instant mortgage contract or sign and seal the application for the registration of the establishment of a mortgage of the instant case. However, in order for the Plaintiff to conclude the instant mortgage contract, the Plaintiff, a religious organization, obtained the resolution of the religious council and the approval of the president of the president of the religious organization A, and therefore, the instant establishment registration of a mortgage of the instant case should be cancelled

3. Determination

A. In a case where a registration of ownership transfer is completed with respect to the conclusion and seal of a mortgage contract, it is presumed that not only the third party but also the former owner acquires ownership through legitimate procedures and causes. Thus, the fact that the registration is invalid due to improper procedures and causes is the burden of proof for the claimant.

(see, e.g., Supreme Court Decision 2004Da27273). According to the foregoing legal doctrine, the instant case is health care unit.

참조판례

-대법원 2004. 9. 24. 선고 2004다27273 판결

유사 판례

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