(영문) 대전지방법원 천안지원 2012.8.14.선고 2010가합4427 판결

1. Of the instant lawsuit, the part of the claim for cancellation of the registration of the establishment of a neighboring mortgage against Defendant E in the primary claim and the conjunctive claim against the Defendants, the part of the claim for cancellation of the registration of the decision on commencement of auction and for cancellation of the registration of provisional seizure against Defendant B and E, the obligation to perform the duty to report and the part

2. The plaintiff's remaining conjunctive claims are dismissed.

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

Purport of claim

The primary purport of the claim is selected: the defendants shall be jointly and severally paid to the plaintiff 14,00,000 won and 9% interest per annum from March 28, 2006 to the delivery date of the duplicate of the complaint of this case; and 20% interest per annum from the next day to the day of complete payment; or the defendant B, C, and E shall jointly and severally pay to the plaintiff 64,000,000 won with 9% interest per annum from February 22, 2006 to the delivery date of the duplicate of the complaint of this case; and 20% interest per annum from the next day to the day of complete payment; Defendant B, and D shall jointly and severally pay to the plaintiff 50,000,000 won with 9% interest per annum from September 12, 2006 to the day of complete payment; and 20% interest per annum from the next day to the day of complete payment.

Preliminary purport of claim: ① Defendant B and E jointly carry out the procedure for cancellation registration of provisional attachment registration filed on March 22, 2006 with the Plaintiff on March 31, 2006, ② Defendant C, D, and E jointly with the Plaintiff and the State (the Commissioner of the National Tax Service) on the size of F 185 square meters, and the registration of establishment registration of neighboring district court, registration of establishment of establishment of Daejeon District Court, registration of support of Daejeon District Court, registration of voluntary decision of commencement of auction filed on March 22, 2006 under the receipt of No. 28034 on March 22, 2006, and the registration of provisional attachment registration filed on March 31, 2006 under the receipt of No. 31393, (2) the following day from the date of termination to the Plaintiff and the State (the head of the National Tax Service) on the value-added tax amount of KRW 28,000,000 and each tax invoice subject to cancellation and invalidation shall be returned to the Plaintiff.

Reasons

1. Judgment as to the main claim

A. Determination as to the claim against Defendant B and E

1) Defendant B and E did not specify the Plaintiff’s primary purport and cause of the claim, and ② In light of the fact-finding that the Plaintiff continuously and repeatedly filed a lawsuit against Defendant B and E based on the same factual basis as that of the primary claim, the Plaintiff’s primary claim constitutes a suit against the principle of good faith, and thus, the Plaintiff’s primary claim against Defendant B and E in the instant lawsuit constitutes an unlawful defense that the primary claim against Defendant B and E is against the principle of good faith.

2) On the other hand, Article 249(1) of the Civil Procedure Act provides that the purport and cause of a claim shall be stated in a complaint. This is because the existence of a certain right or legal relationship claimed by the plaintiff by the description of the purport and cause of the claim, i.e., the subject matter of the claim, can be tried only when the subject matter of the claim is specified. Although the purport of the claim is specified, several rights, such as claims, can be established between the same parties. Thus, the subject matter of the claim can be specified only when the cause of the claim is specified in the cause of the claim. In addition, even in addition to the overall purport of the complaint, purport of the claim, supplementary statement, brief, and all kinds of evidence presented by the plaintiff, the court issued an order to specify the purport and cause of the claim to the plaintiff several times, and the right to seek monetary payment, such as the statement in the primary claim, the right to identify the basis for calculating the interest rate on the date stated in the primary claim B, and thus, the subject matter of the claim against the defendant E-appellant is unlawful.

3) In addition, comprehensively taking account of the respective descriptions and the overall purport of arguments in Eul evidence Nos. 1 through 6 (including each number), the plaintiff asserted that H had been responsible for the operation of G corporation and resided overseas, and that H had embezzled the funds of G corporation in collusion with the trader during that period, and that he had filed a lawsuit against the traders of G corporation including defendant B and E seeking monetary payment, performance of duty of revised registration, and return of goods. The plaintiff filed the lawsuit against the defendant B and Eul on the ground that the judgment of dismissal was rendered on the ground that the plaintiff did not have any evidence to prove the plaintiff's assertion, or that the lawsuit similar to the lawsuit in this case is pending in Seoul Central District Court, Seoul Western District Court, and Seoul Western District Court, etc., including the other division of the court, and that the plaintiff's exercise of judicial function is regulated by the principle of trust and good faith to protect the counter party and secure judicial function. Since the plaintiff's exercise of judicial function against the defendant Eul and the plaintiff's exercise of judicial function against the defendant Eul cannot be accepted as the plaintiff's exercise of judicial function of this case.

B. Determination as to the claim against Defendant C and D

This court ordered the plaintiff to specify the purport of the claim and the cause of the claim several times. In addition to the purport of the entire arguments and arguments, even in addition to the claims, the plaintiff's right to seek monetary payment such as the statement of the primary claim, the right to identify the cause of the claim, and the basis for calculating the interest rate on the date stated in the primary claim cannot be specified. Thus, among the lawsuit in this case, the primary claim against defendant C and D is unlawful because it is difficult for the plaintiff to grasp the specific cause of the claim, such as the right to claim monetary payment as stated in the primary claim, and the basis for calculating the interest rate on the date stated in the primary claim.

2. Judgment on the conjunctive claim

A. Determination as to the claim against Defendant B and E

1) Determination on this safety defense

In light of the Plaintiff’s conjunctive claim and cause of claim are not specified, and the Plaintiff’s conjunctive claim and cause of claim are continuously and repeatedly filed against Defendant B and E based on the same factual basis as the conjunctive claim, the Plaintiff’s conjunctive claim for Defendant B and E constitutes a lawsuit contrary to the principle of good faith. Thus, this case’s conjunctive claim and defense against Defendant B and E are unlawful. Thus, this court ordered correction to specify the Plaintiff’s claim and cause of claim several times, but even if it appears to the purport of the entire pleadings, the Plaintiff’s correction of claim, supplementary cause of claim, brief, and all kinds of evidence presented by the Plaintiff, and the Plaintiff’s right to seek return, right to claim return, date of calculation of interest rates stated in the conjunctive claim, tax invoice subject to return, and goods subject to return, and thus, the Plaintiff’s conjunctive claim and the Plaintiff’s conjunctive claim cannot be seen as unlawful among the Plaintiff’s claim and the Plaintiff’s conjunctive claim and the Plaintiff’s conjunctive claim and the Plaintiff’s conjunctive claim and the Plaintiff’s claim and the Plaintiff’s claim were unlawful among the Plaintiff’s claim and the Plaintiff’s claim-related parties.

2) Determination on the claim for cancellation of the right to collateral security

A) A lawsuit seeking the cancellation of registration against a person liable for registration, namely, a person who is not a person who loses his/her right by registration or who is not a person who is not a person (the title holder of registration or his/her general successor) on the registry, is an unlawful lawsuit against a person who is not a party to the lawsuit (see Supreme Court Decision 93Da39225, Feb. 25, 1994). Since the mortgagee of a preliminary claim for the establishment of a mortgage (hereinafter referred to as the “mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-based

B) The Plaintiff asserted that Defendant B is obligated to perform registration procedures for cancellation of the instant right to collateral security since it terminated around October 2006, and that Defendant B is obligated to perform registration procedures for cancellation of the instant right to collateral security. In light of the overall purport of pleadings as to the real estate stated in No. 5-1 of the evidence No. 1 of May 20, 1992, the Plaintiff completed registration of establishment of collateral security in the name of J Co., Ltd. (the former merger into Defendant B Co., Ltd.) on May 20, 1992. The Plaintiff asserted that on November 3, 2006, Defendant B extinguished all the secured obligation of the instant right to collateral security and filed a lawsuit seeking implementation of registration procedures for cancellation of the instant right to collateral security with the court 2006No3264, Sept. 26, 2008, the Plaintiff’s claim for cancellation of the instant right to collateral security against Defendant B and the judgment of the court 20600 of the instant case cannot be accepted on the grounds of res judicata effect.

3) Judgment on cancellation of provisional attachment registration and claim for cancellation of discretionary decision on commencement of auction

The cancellation of the registration of provisional seizure is made ex officio by the registrar or by the court’s entrustment, and the cancellation of the registration of provisional seizure is not allowed at the request of the party. The cancellation of the registration of the decision on commencement of voluntary auction can be made only by the registrar’s authority or by the court’s entrustment. As such, the part of the claim for cancellation of the registration of the decision on commencement of voluntary auction among

B. Determination as to the claim against Defendant C and D

The court ordered the plaintiff to revise the purport of the claim and the cause of the claim several times. In addition to the purport of the entire arguments and arguments, even in addition to the complaint, amendment of the claim, supplement of the cause of the claim, brief, and all kinds of evidence submitted by the plaintiff, the plaintiff's obligation to make a revised return as stated in paragraphs 2 and 3 of the preliminary claim, the right to seek the return of goods, the right to claim the return of goods, the basis for calculating the interest rate on the date stated in paragraphs 2 and 3 of the preliminary claim, the tax invoice for the revised return, the goods subject to the return, etc. cannot be specified in what the rights and legal relations the plaintiff claims asserted by the plaintiff are because it is difficult to identify the specific cause of the claim, such as the right to file a revised return and the return of goods,

3. Conclusion

Therefore, among the lawsuit of this case, the part of the claim for cancellation of the registration of the establishment of a neighboring mortgage against Defendant E among the main claim, the part of the claim for cancellation of the registration of the establishment of a neighboring mortgage against Defendant B and E, the part of the claim for cancellation of the registration of the voluntary decision on commencement of auction and the cancellation of provisional attachment registration against Defendant B and E, and the part of the claim for the performance of the duty of revised registration and the return of goods against the Defendants are all inappropriate, each of which is dismissed