Whether a lawsuit seeking confirmation of non-existence of a secured obligation of the right to collateral security becomes void if the right to collateral security is cancelled (affirmative)

Since the subject of confirmation in the lawsuit for confirmation requires that it be the current rights or legal relations, it is not recognized as the existence of past rights or legal relations, barring any special circumstance. Therefore, if the mortgage is cancelled, it is about the past rights or legal relations, and there is no benefit of confirmation.

Article 250 of the Civil Procedure Act

[Judgment of the court below]

Defendant

Supreme Court Decision 2010Da54924 Decided May 13, 2011

Busan District Court Decision 2011Na10157 Decided January 6, 2012

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

ex officio, we examine the legitimacy of the instant lawsuit.

1. In a lawsuit for confirmation, it requires that the subject of confirmation be the current rights or legal relations. Thus, barring any special circumstance, it is not recognized that the existence of past rights or legal relations exists, barring any special circumstance. If a lawsuit for confirmation of non-existence of the secured obligation of the right to collateral security is cancelled, it is related to the existence of past rights or legal relations and thus,

In this case, the Plaintiff asserted that there was a monetary transaction with the Nonparty, who was the Defendant’s trial money, and that there was no monetary transaction with the Defendant, and thus, there was no secured obligation with the Defendant as the obligee, and that there was no secured obligation with the Defendant as the obligee, and that the said secured obligation was repaid in excess of the above secured obligation.

However, according to the records, on January 4, 2006, the registration of the entry of the decision of voluntary commencement of auction based on the instant right to collateral security was completed, and on April 22, 2008, after the registration of the entry of the decision of voluntary commencement of auction based on the instant right to collateral security, the Plaintiff raised an objection against the Defendant’s dividend on the date of distribution on June 23, 2009, and then filed a lawsuit of demurrer against the Defendant on June 29, 2009. Furthermore, the said lawsuit of demurrer against distribution was revoked in the first instance judgment against the Plaintiff at the appellate court, and the Plaintiff’s appeal was dismissed in the appellate court, and the fact that the Plaintiff’s appeal was dismissed and confirmed on September 13, 2012 at the appellate court is significant.

In light of the ordinary process of the auction process of real estate rental, if under the above factual basis, there is sufficient room to deem that the registration of establishment of a new real estate of this case was already cancelled.

Therefore, the court below rejected the plaintiff's claim by making a full examination and determination on the merits, although it should have confirmed the cancellation of the registration of the establishment of the establishment of the neighboring real estate through the request for the submission of a certified copy of the register, etc. on the real estate of this case. It erred by misapprehending the legal principles on the interest of confirmation

2. Therefore, without further proceeding to decide on the Plaintiff’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Poe-young (Presiding Justice)