Mental Metal Co., Ltd. (Law Firm Jeonsung, Attorneys Cho Dong-young et al., Counsel for defendant-appellant)

Seoul High Court Decision 201Na1448 decided May 1, 201

September 3, 2010

Cheongju District Court Decision 2009Da22433 Decided March 31, 2010

1. Revocation of a judgment of the first instance;

2. The Defendants expressed their intent to accept the registration of the restoration of the establishment of a neighboring mortgage, which was completed as No. 21423, July 30, 1993, by the Cheongju District Court No. 17064, Mar. 30, 2006, as to the land indicated in the attached list, to the Plaintiff.

3. The total costs of the lawsuit shall be borne by the Defendants.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged between the plaintiff and the defendant Lee Jong-won Central Credit Union, taking into account the whole purport of the arguments, and it shall be deemed that the plaintiff and the defendant Lee Jong-won made confessions.

A. On July 30, 1993, the Plaintiff concluded a mortgage agreement with Nonparty 1 regarding the instant land as the maximum debt amount and the Plaintiff as the mortgagee of the right to collateral security (hereinafter “the instant land”). On July 30, 1993, the Plaintiff completed a mortgage registration agreement with the Cheongju District Court, Dongju District Court, Dongju District Court, No. 21423 (hereinafter “the instant registration of collateral security”) on July 30, 1993.

B. Since then, Nonparty 1 filed a lawsuit against the Plaintiff seeking the implementation of the procedure for registration of cancellation of the registration of establishment of mortgage of this case concerning the land of this case as the Cheongju District Court 2004Kadan12196, which was decided in favor of the Plaintiff on January 13, 2005, on the ground that the extinctive prescription of the claim secured by the right to collateral security of this case has expired, and the Plaintiff filed an appeal (Supreme Court 2005Na48567) and the appeal (Supreme Court 2005Da48567), but the judgment of the first instance became final and conclusive on the ground that both the appeal and the appeal were dismissed.

C. As to the land of this case, Nonparty 1 completed the registration of creation of mortgage and superficies under the Act No. 16747 of March 29, 2006 to the Korea National Credit Union of the Defendant Measures Agency (hereinafter “the Defendant Union”) as of March 29, 2006, pursuant to the Act No. 16748 of March 29, 2006, and subsequently completed the registration of cancellation of the registration of establishment of mortgage of this case as of March 30, 2006 by the Cheongju District Court of the above final judgment as of March 1706. In addition, Nonparty 1 completed the registration of cancellation of the registration of establishment of mortgage of this case to Defendant 2 as of June 3, 2006.

D. After that, on October 27, 2008, the Plaintiff filed a lawsuit for review of the above civil judgment rendered against Nonparty 1 (Cheongju District Court 2008Na12, Cheongju District Court 2005Na511, Cheongju District Court 2009). On August 21, 2009, the judgment for review and the judgment of the first instance is revoked, respectively. Nonparty 1 waives the right to claim cancellation registration of the registration of the establishment of a mortgage of this case between the Plaintiff and Nonparty 1. Nonparty 1 performed the procedure for restoration registration of the registration of the establishment of a mortgage of this case. Nonparty 1 performed the procedure for restoration registration of the registration of the establishment of a mortgage of this case.

2. Summary of the plaintiff's assertion

The registration of the establishment of the establishment of the neighboring mortgage of this case was cancelled illegally by the final judgment based on the judgment of the non-party 2's perjury, and thus, it should be restored. The defendants are the third party interested in the registration and are obliged to express his/her consent to the procedure for the registration of the establishment of the neighboring mortgage

3. Summary of the defendant union's assertion

Since the Defendant Union created the right to collateral security and superficies under the name of the Defendant Union lawfully with Nonparty 1 after the right to collateral security was cancelled, the Defendant Union did not have any obligation under the substantive law to express its consent to the procedure for recovery registration of the right to collateral security in the instant case.

4. Determination

Where a registration of cancellation is cancelled unlawfully, a registration made for the purpose of holding the same effect as that of the cancellation without such cancellation from the beginning by restoring the cancelled registration, and Article 75 of the Registration of Real Estate Act provides that where an application for restoration of cancelled registration is filed by a third party having an interest in the registration, a written consent or a certified copy of a court decision in opposition thereto shall be attached to the application. In this context, where a third party having an interest in the registration is likely to suffer damage by making a cancellation registration, a person recognized in the form of the existing registry is recognized as having an interest in the registration, and where a cause of cancellation registration becomes null and void because the registration is cancelled without the intention of the person entitled to registration, a third party having an interest in the registration is liable to consent necessary for the procedure of recovery registration of the person entitled to registration without asking his good faith, bad faith, and bad faith, and a third party who has completed the registration of cancellation is liable to consent as a third party having an interest in the procedure of recovery registration (see, e.g., Supreme Court Decision 95Da39526, Sept. 30, 1997).

According to the evidence evidence Nos. 5 and 6, the issues of the Cheongju District Court case No. 2004Ka12196, Cheongju District Court case No. 2004, 12196, asserted that the plaintiff again renounced the extinctive prescription benefit as to the non-party 1's defense, which was the secured claim for the establishment of a collateral for the establishment of a collateral for the establishment of a collateral for the establishment of a collateral for the instant case, and whether the above extinctive prescription benefit has been renounced. However, the non-party 1, the plaintiff of the instant case, as a witness, has instigated the non-party 2 who was appointed as a witness, and the non-party 2 appeared as witness of the instant case at the court of 80 days after the expiration of the extinctive prescription of the above secured claim, the non-party 2 did not request an auction to the non-party 1, who is the representative director of the plaintiff's office, or was sentenced to the non-party 1, who had already received the above decision No. 1, but did not receive any money from the above non-party 1.

Therefore, Nonparty 2’s perjury by Nonparty 1’s teacher was submitted as evidence against the Plaintiff’s argument that Nonparty 1 renounced the extinctive prescription benefit, and it appears that it affected the outcome of the appeal and appeal case of the above Cheongju District Court 2004Kadan12196 and the judgment on the appeal and appeal case of the above case. Nonparty 1 in the above retrial case brought after Nonparty 1 and Nonparty 2 became guilty of the Plaintiff’s request for retrial due to the above perjury, and it appears that Nonparty 1 adjusted the above case. Therefore, in light of the background leading up to the cancellation of the right to collateral security of this case and the circumstances leading up to the conciliation of this case, it is reasonable to deem that the right to collateral security of this case was illegally cancelled, and since the registration of cancellation of the right to collateral security of this case and superficies of this case should be cancelled, the Defendants, who established the right to collateral security and superficies of this case, have the duty to consent as a third party with the interest in the registration procedure for recovery registration of the establishment of the right to collateral security.

[A] The conciliation of this case includes the contents that the decision cannot be revoked by the conciliation, and the conciliation of this case is null and void and the defendant union did not have a duty to consent to the registration of the restoration of the right to collateral security in this case. However, since the judicial conciliation protocol has the same effect as the final and conclusive judgment and its contents violate compulsory law, it cannot be deemed null and void as long as the conciliation protocol is not revoked by the quasi-Review procedure (see Supreme Court Decision 98Da38760 delivered on October 8, 199, etc.). As mentioned above, the conciliation of this case is formed with the content that actually accepts the plaintiff's request for retrial, and the content of the conciliation of this case is also formed with the content that in fact, the non-party 1 waives the right to claim the cancellation of the registration of the establishment of right to claim the cancellation of the right to claim the registration of the creation of a right to collateral security in this case, which is implemented by the parties to the procedure for the restoration registration of the registration of the right to collateral security in this case, so long as the above protocol has not been revoked by the quasi-Review procedure.]

5. Conclusion

Therefore, the defendants are obligated to give consent to the registration of the restoration of the establishment of a mortgage of this case, which was cancelled on March 30, 2006 by the Cheongju District Court No. 17064 on the land of this case, and thus, the plaintiff's claim of this case is accepted on the grounds of its reasoning. The judgment of the court of first instance which concluded otherwise is unfair, and it is so decided as per Disposition by cancelling it and ordering the defendants to perform the above obligation.

[Attachment]

Judges Kim Jong-Gyeong (Presiding Justice)