2015Na2073928 Confirmation of Non-existence of Obligation

○ ○

Seoul

Law Firm ○○, Counsel for the defendant-appellant

○○, ○○, ○○

1. Doumping Doumping corporation;

Seoul

○○○○

2. Do Governors;

Sincheon-si

Plaintiff’s Intervenor Law Firm 000

[Defendant-Appellant]

Bankruptcy Trustee of Savings Bank, Inc.

Seoul

Representative ○○○○

○○ Legal Representative ○○

Law Firm OOO

Attorney OOO, ○○

Seoul Central District Court Decision 2015Gahap547716 Decided November 11, 2015

March 10, 2016

April 21, 2016

The judgment of the first instance is revoked.

The case is remanded to the Seoul Central District Court.

Revocation of the judgment of the first instance court. The Seoul Central District Court on real estate stated in the attached list shall be revoked on December 12, 2011.

29. Confirmation that there is no secured obligation for registration of establishment of the right to collateral security which was completed by the recipient No. 81883.

of the corporation.

1. Presumed factual basis

The court's explanation about this part of the judgment of the court of first instance is "1. Basic facts"

Since it is the same as in the Civil Procedure Act, it is quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Issues of the instant case

A. Whether there is a benefit in confirming the instant lawsuit

B. Whether the case is remanded to the first instance court

3. The judgment of this Court

A. Whether there is a benefit in confirming the instant lawsuit

【Plaintiff’s argument】

The Plaintiff asserts as follows. The Plaintiff is unspecified for the secured debt of this case.

The non-existence of the instant mortgage and the violation of the Mutual Savings Banks Act

담보채무의 절대적 무효 , ◆◆◆의 이사회 결의 부존재로 인한 이 사건 근저당권 피담

It is confirmed that there is no secured debt of this case on the ground of invalidity of the secured debt.

(3) The Plaintiff’s right to claim for cancellation of the right to collateral security of this case shall exist in the previous lawsuit

The plaintiff and the defendant have res judicata effect as to the non-re-determination, but have become final and conclusive;

In a lawsuit seeking cancellation of a right to collateral security, a statement as to the existence of such secured claim within the objective scope of res judicata

단은 포함되지 아니하고 , 그 결과 ◆◆◆과 피고 및 원고 사이에 이 사건 근저당권 피

There is a dispute over the existence of the secured obligation and its existence as a preliminary question.

In accordance with Article 266(1)3 of the Civil Procedure Act, the Plaintiff’s collateral security of the instant case

The auction procedure for the building of this case shall be conducted by obtaining a final and conclusive judgment that there is no liability.

Therefore, the Plaintiff’s non-existence of the secured obligation of the instant case can be suspended.

The lawsuit of this case is legitimate for legal interest.

【Defendant’s argument】

The defendant asserts as follows. The plaintiff's legal theory that the plaintiff seeks to resolve through this case.

In the end, the instant mortgage on the instant building owned by the Plaintiff.

With the enforcement of the right, there is concern about the burden of physical liability as a surety. However, this concern is the concern about this.

The validity of collateral security between a person who has pledged his/her property to secure another's property and a mortgagee.

The most effective and appropriate means to resolve the dispute shall be the lawsuit seeking confirmation of the absence of such secured obligation.

In addition, the claim for cancellation of the right to collateral security is a lawsuit for cancellation of the right to collateral security.

As to the fact that there is no right to claim cancellation of a mortgage, the plaintiff and the defendant

Although res judicata has arisen, the Plaintiff’s preemptive legal relationship in the previous lawsuit (the existence of a secured obligation)

(1) file a separate lawsuit by asserting only the grounds before the closure of pleadings in the previous lawsuit;

Therefore, there is no benefit in confirmation of the instant lawsuit. This does not mean that there is no benefit in confirmation under Article 266(1)3 of the Civil Execution Act.

The same shall also apply when considering the provisions of each subparagraph.

[Judgment]

The purpose of the claim for confirmation is to effectively resolve the current legal dispute.

specifically subject to current specific rights, obligations, or legal relations, and in the action of confirmation

The confirmation of the legal relationship is a risk existing in the Plaintiff’s rights or legal status according to that legal relationship;

In order to eliminate anxietys by causing them, the legal relationship is verified by the plaintiff · avoid.

the judgment of confirmation between the court and the court is required to be made immediately, and it is most effective and effective.

There is a benefit of confirmation (Supreme Court Decision 94Da23388 delivered on November 8, 1994) as appropriate means;

Supreme Court Decision 2009Da75635, 75642 Decided December 24, 2009 (see, e.g., Supreme Court Decision 2009Da75635, 75642). Meanwhile, the press of a final judgment

The history is only the conclusion of the judgment on the existence of the legal relationship alleged as the subject matter of a lawsuit and its premise.

Supreme Court Decision 93Da308 delivered on March 24, 1995, et al., Counsel for the plaintiff-appellant)

52488. See Supreme Court Decision 52488) Cancellation of registration made on grounds of a claim, the existence of an obligation, the claim, and a relationship between

Since the existence of a claim is separate subject matter, the case of claim for confirmation as to the existence of a claim and an obligation and cancellation thereof.

It is reasonable to view that a case claiming registration has res judicata effect on each other (Supreme Court Decision 201

Article 266(1) of the Civil Execution Act (see Supreme Court Decision 80Da1020, Sept. 9, 1980); further, Article 266(1) of the Civil Execution Act provides a security right.

2. Determination of a final and conclusive judgment ordering the cancellation of registration of security rights;

this section 3. Any of the "original copy of a final and conclusive judgment that no security right has been or has been extinguished"

If the documents are submitted to the auction court, the auction procedure should be suspended.

The facts acknowledged in the first instance judgment citing the aforementioned legal principles and statutory provisions by this court.

In light of the above, although the plaintiff filed a previous lawsuit for cancellation of the right to collateral security of this case, the plaintiff filed for registration of cancellation.

Although res judicata effect has occurred between the plaintiff and the defendant as to the existence of no right,

Determination as to the existence of the secured obligation of the instant case in the objective scope of res judicata of the previous lawsuit

The plaintiff does not include the contract to establish a mortgage of this case and the records of this case in the previous lawsuit.

저당권 피담보채권인 저축은행의 ◆◆◆에 대한 채권이 통정허위표시로서 무효이

Therefore, although it was alleged that the establishment registration of the neighboring mortgage of this case should be cancelled, the lawsuit of this case

Unlike this, the non-mortgage of this case due to the unspecifiedness of the secured debt of this case

성립 , 상호저축은행법 위반으로 인한 이 사건 근저당권 피담보채무의 절대적 무효 , ◆

◆◆의 이사회 결의 부존재로 인한 이 사건 근저당권 피담보채무의 무효 등의 사유를

Then, it is sought to confirm that there is no debt secured by the mortgage of this case, and the previous lawsuit is filed.

In accordance with the res judicata of a final and conclusive judgment, the litigation seeking cancellation of the right to collateral security of this case shall be instituted again.

The plaintiff who was unable to obtain the collateral of this case pursuant to Article 266(1)3 of the Civil Procedure Act

A final and conclusive judgment that there is no security obligation (such final and conclusive judgment also has no security right or no security obligation.)

It shall be subject to a final judgment to that effect, etc., but the auction procedure for the building of this case shall be

Therefore, the Plaintiff’s non-existence of the secured obligation of the instant case can be suspended.

Seeking the Plaintiff’s right or legal status to eliminate the risks existing in the Plaintiff’s right or legal status, and uneasiness

Since it can be a valid and appropriate means, the plaintiff can seek confirmation of the non-existence of the law.

The lawsuit of this case is legitimate for the benefit of interest.

C. Whether the case is remanded to the first instance court

Article 418 of the Civil Procedure Act revokes the first instance judgment which rejected a lawsuit on account of its illegality.

The court of appeals shall remand the case to the first instance court: Provided, That it may render a judgment on the merits in the first instance court.

the court of appeals, on its own initiative, with the examination or with the consent of the parties;

The judgment on the merits can be rendered, which is the case where the judgment on the dismissal of the lawsuit has been revoked.

The appellate court has revoked the judgment of the first instance and this case since the appellate court did not have tried the merits in the first instance court.

as a result of the absence of a hearing of the merits in the first instance if the judgment is rendered by the person himself/herself;

In light of the fact that it harms the interests of the court, the purpose is to avoid it.

According to the records, the judgment of the court of first instance is sufficient to render a judgment on the merits of the case.

In the event that the judgment of the court of first instance is revoked, it is difficult for the plaintiff, the defendant, and the plaintiff's supplementary participation to the court of first instance.

for the first instance court, the case is remanded to the court of first instance, and the tier system is the lawsuit.

respectable as being provided for in the purport of ensuring that the parties have the opportunity to undergo a proper trial;

for the purpose of maintaining a court-level system and ensuring appropriate litigation procedures;

It is reasonable to remand to the first instance court.

4. Conclusion

For this reason, the first instance court is the first instance court pursuant to the main sentence of Article 418 of the Civil Procedure Act.

The Seoul Central District Court shall remand the case to be tried and judged again.

Judge exhauster of the presiding judge

Judges Park Jae-woo

Judges Park Jong-tae