Cases of misunderstanding the legal principles as to the cancellation of security;

Even if a favorable judgment on the claim to cancel the registration of transfer of ownership, which is the main subject of the case, was final and conclusive after the security was provided and the decision on the prohibition of disposal of real estate and the provisional disposition against the transfer of possession was rendered, the security cause cannot be deemed extinguished unless the main decision on the claim is

Article 115(1) of the Civil Procedure Act

Boli Livestock Co., Ltd.

Respondent

Seoul High Court Decision 66Ka51 delivered on April 27, 1966

I reverse the original decision.

We examine the reasons for reappeal.

If the surety seeks to file an application for cancellation of the collateral, he may file an application for cancellation of the collateral with the court with the consent of cancellation of the collateral granted by the mortgagee pursuant to Article 115(1) of the Civil Procedure Act or Article 115(2) of the same Act. Further, pursuant to Article 115(3) of the same Act, the surety may file an application for cancellation of the collateral with the court when the mortgagee does not exercise his right within the prescribed period of time. In light of the records of this case, the applicant filed an application against the re-appellant for cancellation of the collateral. The applicant shall be subject to the procedure for cancellation of the ownership transfer registration made on April 17, 1958 as Seoul District Court No. 5261, No. 5261, May 17, 1958; the site and building mentioned in the same list; the applicant shall be transferred to Seoul High Court No. 62Na1181, Dec. 16, 2013>

However, considering the above facts in this case, the part concerning the plaintiff's claim for the cancellation of ownership transfer registration concerning the above real estate in the present case becomes final and conclusive by the Supreme Court 65Da2564, and the security grounds for this part of the claim were extinguished. However, as to the part about the claim for the delivery of the above real estate, there is no clear trace as to the part concerning the claim for the delivery of the above real estate, the security grounds for this cannot be deemed to have been extinguished, and therefore, in the case of the application for cancellation of this case, the security grounds for the claim

Therefore, the application for the cancellation of this case filed under Article 115 (1) of the Civil Procedure Act on the premise that the applicant's ground for the cancellation of this case has ceased to exist, notwithstanding the fact that there is no reason, it cannot be an error of misunderstanding the legal principles as to the cancellation of security by recognizing that the ground for the cancellation of security has ceased to exist in whole, and thereby making a decision to revoke the cancellation of security under Article 115 (1) of the same Act. Therefore, the argument of the re-appellant is justified.

Therefore, we reverse the original decision. It is so decided as per Disposition by the assent of all participating Justices.

Judge Do-dong (Presiding Judge) of the Supreme Court