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(영문) 서울고법 1970. 5. 7. 선고 69나2617 제6민사부판결 : 확정
[근저당권설정등기말소등청구사건][고집1970민(1),221]
Main Issues

Whether the registration made by the obligee is valid as a document required for the transfer registration of ownership delivered by the obligor prior to the expiration of the term agreed upon.

Summary of Judgment

Even if a creditor who completed a provisional registration and the establishment registration of a neighboring mortgage and received the documents required for the ownership transfer registration, has completed the ownership transfer registration under his/her own name prior to the expiration of the contract period, the registration is valid in the meaning of the security for such purpose.

[Reference Provisions]

Article 186 of the Civil Act

Plaintiff and appellant

Plaintiff

Defendant, Appellant

East Chemical Industry Co., Ltd and one other

Judgment of the lower court

Seoul Central District Court (69Da929) in the first instance trial

Text

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim and appeal

As to the real estate recorded in the attached list, Defendant 2 shall register cancellation of the registration of creation of superficies, the purpose of which is to own trees, wooden buildings and structures, and the procedure for cancellation of the registration of creation of superficies, the registration of establishment of superficies, the ownership of which is to be owned by Nonparty 1 on June 20, 1968, under the provisional registration for securing the right to claim ownership transfer based on the purchase and sale reservation issued on June 20, 1968, which was issued by the Sungdong District Court Sung-dong Registry of Seoul District Court No. 19172, Jun. 20, 1968, which was issued by the above registry No. 19172, Jun. 20, 1968; and the Defendant East Chemical Industry Co., Ltd., on the above real estate, the maximum amount of claims under the collateral security contract signed on June 20, 1968, which was cancelled by Nonparty 1, each of which was executed by Nonparty 1.

The court costs are assessed against the defendant in the first and second trials.

Reasons

(1) On May 28, 1968, the real estate recorded in the attached list was originally owned by the plaintiff and registered for the preservation of ownership under the name of the plaintiff, and on May 28, 1968, the registration for the transfer of ownership was completed on the ground of sale as of May 28, 1968 by the Sungdong District Court Sungdong District Court's receipt of the Sungdong District Court's Sungdong Office as of May 28, 1968, and as stated in the purport of the claim, there is no dispute between the parties.

(2) The plaintiff's registration of transfer of ownership is invalid without any ground for the non-party 2's registration of the above real estate listed in the separate list No. 5 (the non-party 2's signature No. 50,000 won for the above real estate). The plaintiff's signature No. 2's signature No. 5 (the non-party 2's signature No. 500,000 won for the above real estate No. 2's signature No. 9) and the non-party 2's signature No. 9's signature No. 2's signature No. 9's signature No. 9's signature No. 2's signature No. 9's signature No. 2's signature No. 9's signature No. 2's signature No. 9's signature No. 2's signature No. 600,000 won for the above real estate's signature No. 9's signature No.

(3) Therefore, the plaintiff's claim to cancel the registration of transfer of ownership against the defendant, etc. on the premise that the registration of transfer of ownership by the non-party 2 is null and void shall be dismissed without merit. Thus, the original judgment with the same conclusion is justified and the plaintiff's appeal shall return to the purport that the plaintiff's objection is groundless, and thus, it shall be dismissed. It is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act with respect to the

[Attachment List omitted]

Judges Kim Jong-nam (Presiding Judge)

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