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Cases
2017Da221167 Cancellation of the registration of right to collateral security.
Plaintiff, Appellee
A Stock Company
Defendant Appellant
B
The judgment below
Seoul High Court Decision 2016Na2049663 Decided March 10, 2017
Imposition of Judgment
September 21, 2017
Text
The judgment of the court below is reversed.
The judgment of the first instance is revoked, and the lawsuit is dismissed. All costs are borne by the plaintiff and the defendant respectively.
Reasons
The grounds of appeal are examined.
In a case where the entire registered matters of a certain registration are inconsistent with the original or latter substantive relations, registration made for the purpose of legally extinguishing the entire registration concerned is deemed to mean a registration made for the purpose of legal extinguishment. Thus, there is no legal interest in seeking cancellation of registration already cancelled (see, e.g., Supreme Court Decisions 2002Da57904, Jan. 10, 2003; 2006Da72802, Feb. 26, 2009).
According to the records, it can be seen that the establishment registration of a mortgage of this case against the defendant was cancelled on June 9, 2016, which was prior to the closing of argument in the court below, where the plaintiff sought the implementation of the cancellation registration procedure against the defendant.
Therefore, there is no legal interest in seeking cancellation of the registration of creation of a neighboring mortgage of this case, and the lawsuit of this case is unlawful as there is no benefit in the lawsuit. Nevertheless, the court below erred by misapprehending the legal principles as to the interest in the lawsuit in the registration of cancellation. The ground of appeal assigning this error is with merit.
Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed. Since this case is sufficient for the court to directly render a judgment, the judgment of the court of first instance is revoked and the lawsuit of this case is dismissed. The total costs of the lawsuit are assessed against the plaintiff and the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Judges
Justices Kim In-bok
Justices Kim Yong-deok
Justices Park Sang-ok
Attached Form
A person shall be appointed.