Whether a barge with no navigational capacity is a ship to be registered.

A barge towed by another ship only without a navigational power or a navigational power shall not be a ship but a ship to be registered, regardless of its tonnage, because the barge itself has no navigational ability.

Articles 6 and 20 of the Ship Act, Article 5 of the Ship's Techniques

Plaintiff

Jeju Bank, Inc.

Busan District Court (71 Gohap1311,1625)

Supreme Court Decision 73Da142, 143 Decided May 30, 1973

The judgment of the first instance shall be revoked.

The Busan District Court No. 71ta917, which the Defendant Lessee filed against the vessel listed in the attached list, shall be dismissed.

The remaining claims of the Plaintiff (Counterclaim Defendant) are dismissed, and the Defendant (Counterclaim Plaintiff)’s counterclaim is dismissed.

The total cost of a lawsuit shall be borne by the plaintiff (the counter-defendant) and the defendant (the counter-appellant) for two minutes through the principal lawsuit and the counter-action, respectively.

The plaintiff (Counterclaim defendant: hereinafter the plaintiff is only the plaintiff's counterclaim) is the purport of the principal lawsuit, and the defendant (the plaintiff is only the plaintiff's plaintiff; hereinafter the defendant is only the defendant's plaintiff) requested that the plaintiff pay to the plaintiff the amount of the barge recorded in the attached list at the rate of five percent per annum from February 15, 1969, with the amount of money calculated at the rate of five percent per annum from the Busan District Court No. 174, Apr. 4, 1967, the registration procedure for cancellation of the establishment of a mortgage and the litigation costs arising out of the contract to establish a mortgage as of April 4, 1967.

The court ruled that the costs of the lawsuit due to the counterclaim shall be borne by the plaintiff.

The original judgment shall be revoked.

The other is the same as the description of the purport of the claim in the principal lawsuit.

In this case, the fact that the ship of the attached list in question is the barge and the registration of the establishment of a neighboring mortgage by the contract, such as the purport of the claim in the name of the defendant, was passed through the registration of the establishment of a mortgage, is examined as to whether the above ship has reached the vessel and the ship technique, because there is no dispute between the parties.

According to the provisions of Articles 6 and 20 of the Ship Act, a barge operated only by a ship with a gross tonnage of less than 20 tons or a single ship or an old ship is not a ship to be registered, but a barge towed by another ship alone without a navigational engine or a navigational propeller. Thus, the ship in this case is not a ship to be registered despite its tonnage, but a ship in this case's gross tonnage of which the market value is more than 4,00,000 won and is used for business, even if it is used for business, it is obvious by the court below's verification that there is no navigational engine or navigational propeller, and it does not constitute a ship to be registered as a ship. Accordingly, the registration of establishment of a mortgage over the issue in the name of the defendant is null and void.

However, according to the provisions of Article 5 of the Ship Registry Act, when the provisions of Articles 55, 175, and 183 of the Registration of Real Estate Act are applied mutatis mutandis to the registration of a ship, and the registration is not a ship to be registered, a request of the registry official for correction of the disposition shall not be made by means of a general lawsuit, such as the plaintiff's request for cancellation of the registration of the establishment of a neighboring mortgage in the name of the defendant. Thus, the part of the plaintiff's claim seeking cancellation of the registration of the establishment of a neighboring mortgage in the name of the defendant shall not be dismissed as it is illegal and illegal. However, even if the registration of the establishment of a neighboring mortgage in the above case becomes null and void, it cannot be conducted by auction, so the auction case in Busan District Court 71 another917, which is currently in progress, cannot

Then, according to the evidence Nos. 1 and 2, the defendant asserted that the plaintiff as the owner on the registration of the barge of this case was entitled to KRW 3,500,00,000, which is the market price limit of the ship which the previous owner was borne by the defendant as the collateral for the above ship. Thus, according to the plaintiff's statement Nos. 1 and 2 that there is no dispute over the establishment, it can be recognized that the registration of the establishment of the non-party 2 corporation (the above non-party 1 is the representative of the above company) prior to the plaintiff acquiring the ship of this case, which is the debtor, was the registration of the establishment of the non-party 1 as the owner on the registration of the ship of this case, but the registration cannot be registered. According to the testimony of the non-party 3 of the witness of the court below, according to the above registration of the non-party 3 of this case, the plaintiff's claim for counter-party 1 cannot be said to have been the owner of the ship and taken over its obligation.

Accordingly, the judgment of the first instance court is unfair by different conclusions, and thus, the objection is revoked by Article 386 of the Civil Procedure Act and it is so decided as per Disposition by Article 89 and Article 96 of the Civil Procedure Act as to the bearing of the total litigation cost.

[Attachment List omitted]

Judges Seo-sok (Presiding Judge) Hun-Gaon Park Jae-joon