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(영문) 서울고등법원 2015.06.16 2014나51284
근저당권말소
Text

1. All appeals filed by the Defendant (Counterclaim Plaintiff) regarding the main claim and the ancillary counterclaim are dismissed.

2. The costs of appeal are the principal lawsuit.

Reasons

1. In the first instance court’s trial scope, the Plaintiff filed a claim for the cancellation of the registration of the establishment of a neighboring mortgage on September 9, 2010 and the registration of the establishment of a neighboring mortgage on March 2, 201 as the principal lawsuit, and the Defendant filed a claim for damages of KRW 1.5 billion against the case where the claim for the cancellation of the registration of the establishment of a neighboring mortgage on March 2, 201 as the preliminary counterclaim was accepted.

The court of first instance dismissed the Plaintiff’s claim for cancellation of the registration of the establishment of a neighboring mortgage on September 9, 2010, and accepted the Plaintiff’s claim for cancellation of the registration of the establishment of a neighboring mortgage on March 2, 2011, and dismissed the Defendant’s preliminary counterclaim.

Therefore, since only the defendant appealed against this issue, the subject of the judgment of this court is limited to the claim for cancellation of the registration of the establishment of a mortgage prior to March 2, 2011 and the claim for preliminary counterclaim.

Then, this part of the lawsuit and the preliminary counterclaim shall be deemed together.

2. The relevant part of the grounds for the judgment of the first instance shall be quoted pursuant to the main sentence of Article 420 of the Civil Procedure Act.

3. The parties' assertion

A. Since L, which is not related to the Plaintiff’s assertion (related to the principal lawsuit), forged a letter of delegation, written confirmation, and written mortgage contract under the Plaintiff’s name and subsequently completed the registration of the establishment of the second collateral mortgage (=the registration of the establishment of the second collateral mortgage around March 2, 201), the Defendant is obligated to cancel the registration of the establishment of the second collateral mortgage which is null and void to the Plaintiff.

B. The Defendant’s assertion (the principal lawsuit and the conjunctive counterclaim) and the Plaintiff and I are under the management of the Religious Organization’s Order. L, as the actual manager of the Plaintiff and I, has the authority to conclude a mortgage contract with the Defendant by means of proxy, written confirmation, written document, and written mortgage contract, etc. under the name of the Plaintiff and I, and thus, the registration of establishment of the second collateral mortgage is valid. 2) Even if L is related to the registration of the establishment of the second collateral mortgage.

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