Whether to accept the registration of the restoration of the establishment of a neighboring mortgage;

If the previous registration cancelled in the course of the restoration of cancellation registration becomes a joint application, the registration of restoration shall also be applied jointly. However, if such registration is cancelled at the commission of the court, the registration of restoration shall also be made at the commission of the court. Therefore, there is no benefit to the filing of the registration of restoration.

Article 91(2) of the Civil Execution Act

Seoul Central District Court-2017-Ban-5146214 ( October 18, 2018)

△△△△△△ Investment Company

EO and 11 others

November 9, 2017

January 18, 2018

1. The Plaintiff’s lawsuits against Defendant ○○, this △△△, Kim △△△, and Kim ○ are all dismissed.

2. The Plaintiff’s claim against Defendant Kim Jong-tae, △△, △△△△, ○○○○○, a corporation at a school, the Republic of Korea, △△△ City, and ○ Agricultural Cooperative is all dismissed.

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

1. Basic facts

A. Defendant ○○○ was the owner of 83-27 forest land in △△△△△△, △△△△△△, 1,640 square meters (hereinafter “instant land”). As to the instant land, Defendant ○○ District Court ○○○○○○○○○○○○○○○ on December 17, 2009, the debtor had completed the registration of creation of mortgage around the ○○○○ Bank (hereinafter “instant first collateral security”) with the amount of 408,000 won and the maximum amount of debt at KRW 408,000 on December 17, 2009. The first collateral security right of this case was changed to the first collateral security right on December 2, 2010 on the land of this case on the ground of a renunciation of share. The debtor was changed to Defendant ○○○○○○ on June 3, 2014.

B. On December 17, 2009, Defendant Lee ○○○ District Court’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the instant land, the obligor, as Defendant △△△△△△△, the maximum debt amount of KRW 564,00,000, completed the registration of creation of a neighboring mortgage in the future of the ○○○○○○ Bank (hereinafter “instant mortgage No. 2”). The instant right to collateral No. 2 was changed to the right to collateral security on December 2, 2010 on the ground of the renunciation of share.

C. On December 17, 2009, Defendant Lee ○○ court ○○○○○○○○○○○○○○○○○○○○○○○○ on the instant land, the debtor, as the head of △△△○○○○○○○○○○○○○○○○○ on December 17, 200, completed the registration of creation of a neighboring mortgage in the future of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○, the maximum debt amount KRW 480,00 (hereinafter “instant mortgage”) (hereinafter “instant third mortgage”). The third mortgage on December 2, 201 was changed to the right to collateral security on

D. On December 17, 2009, Defendant Lee ○○ court ○○○○○○○○○○○○○○○○○○○○○○○○○○ on the instant land, the debtor, at the original △△△△○○○○○○○○○○○○, the maximum debt amount, KRW 516,00,000, completed the registration of creation of a mortgage in the future of the ○○○○○○○○○○○○○○○○○○○○○○○, which was regarding the instant land (hereinafter “instant mortgage No. 4”). On December 2, 2010, the instant mortgage No. 4 was changed to the right to collateral security on the portion of 1

E. On July 18, 2012, upon the application of the ○○○○○○○○○○○○○○○○○○○○○○○○○○, a voluntary auction procedure was commenced on July 18, 2012 regarding the 1/5 shares of the instant land (hereinafter “voluntary auction”). At the time, the instant land was owned by the Defendant △△△△ (176/205 shares), Defendant △△△△△ (132/1,640 shares), Defendant △△△△△△ (10/1,640 shares), and Defendant Kim△△△△ (100/1,640 shares)’s shares (327/1,640 shares). Meanwhile, on May 8, 2013, during the instant voluntary auction procedure, the registration of ownership transfer was completed with respect to some shares (327/1,640 shares) of Defendant ○○○○○○○○○○○○○ on July 15, 201615.

F. As above, as the shares of 1/5 of the instant land were sold in the instant voluntary auction procedure, the registration of cancellation was completed at the ○○○ court’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the ground of sale by voluntary auction on July 15, 2015 with respect to each of the instant collateral mortgages Nos. 2, 3, and 4 at the request of the executing court.

G. As of July 15, 2015, Defendant Lee ○, this △△△△△, Kim △△△, and Kim ○ is jointly owning the instant land.

H. On July 22, 2011, Defendant Kim Jong-tae, and Park Jong-young completed the registration of establishment of the right of lease with the ○○○○ Court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office received.

I. On July 22, 2011, Defendant △△△△△ corporation completed the registration of creation of a mortgage on the part of Defendant △△△△△△△△△△△, which was the part of the instant real estate, with the ○○○○○ Court ○○○○○○○○○○○○○○○○

(j) On July 27, 2011, Defendant ○○○○○○○ Co., Ltd. completed the registration of the establishment of a neighboring establishment with the ○○○ court ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Office

(k) On November 11, 201, the Defendant, a corporation at issue, completed the registration of the establishment of a neighboring △△△○○○○○○○○○○○○○○○○○○○○○○○○, among the instant real estate.

(l) On July 15, 2015, Defendant ○ Agricultural Cooperative completed the registration of establishment of a neighboring establishment under the ○○ District Court ○○○○○○○○○○○○○○○○○○○○○○○○○○○, which received her clock registry office.

(m) On November 11, 2016, Defendant Republic of Korea completed each of the registrations of seizure on December 30, 2016, 200 ○○ District Court’s ○○○○○○○○○○○○○○○○○○○○○ and December 30, 2016 regarding the shares of Defendant Kim○○○, among the instant real estate.

n. On January 18, 2017, Defendant △△△ completed the attachment registration with the ○○ District Court ○○○○ Branch ○○○○○○○○○○○○○○○○○○○○○○○○○○ on the instant real property.

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. The plaintiff's assertion

Since the procedure of voluntary auction was conducted on the basis of the right to collateral security No. 4 of this case, each of the right to collateral security No. 2 and 3 of this case shall not be cancelled on the ground of sale due to the voluntary auction of this case.

Despite the fact that each of the instant collateral security claims Nos. 2 and 3 was acquired from ○○○○ Bank in succession, Defendant Lee○, ○○○, △△△△△△△△△, and Kim○○, the owner of the instant land at the time of the registration of cancellation of each of the instant collateral security claims Nos. 2 and 3, shall implement each of the registration procedures for cancellation of each of the instant collateral security claims No. 2 and 3, and the remaining Defendants, the third party with interest in the registration, must express their intention to accept the registration of restoration.

3. Determination on the legitimacy of a lawsuit against Defendant Lee ○, Lee △△, Kim △△, and Kim ○

Where the former registration cancelled in the course of the restoration of cancellation registration becomes a joint application, the registration of restoration shall also be applied jointly, but where the registration is cancelled at the commission of the court, the registration of restoration shall also be filed at the commission of the court (see Supreme Court Decision 94Da27205, May 31, 1996). Thus, in light of the above legal principle, the Plaintiff sought cancellation of the registration of creation of a new mortgage on the following grounds: (a) Defendant ○○, this △△△△, △△△, Kim △△, and Kim ○; (b) the Plaintiff sought cancellation of the registration of the establishment of a new mortgage on the following grounds: (c) while the registration of the establishment of a new mortgage on the two and three occasions was sought against Defendant 2, this case; (d) the registration of restoration was cancelled at the commission of the court; and (e) the registration of restoration shall also be made by the commission of the court. Therefore, the Plaintiff’s revocation of the registration of the establishment of a new mortgage on the three occasions of this case is unlawful.

4. In a case where the Plaintiff’s application for auction on the mortgaged real estate was not filed by the mortgagee, but other creditors filed a request for auction on the mortgaged real estate in accordance with Articles 91(2) and 268 of the Civil Execution Act, the right to collateral security against the mortgagee, who did not file a request for auction pursuant to Articles 91(2) and 268 of the same Act, shall also be extinguished due to the sale of the mortgaged real estate.

In addition to the purport of the argument in Gap evidence No. 1, the voluntary auction procedure of this case was commenced on the basis of the right to collateral security of this case No. 4, and the object of the auction procedure was sold during the voluntary auction procedure, and each of the right to collateral security of this case No. 2 and No. 3 is subject to the same object as the right to collateral security of this case No. 4 (the object of each right to collateral security of this case is all 1/5 shares out of the land of this case and is not identified as a co-owner's shares). According to the above legal principles, each of the right to collateral security of this case No. 2 and No. 3 of this case cannot be deemed to be cancelled on the ground of sale due to the right to collateral security of this case, and there is no other evidence to acknowledge it otherwise. Accordingly, on the premise that the cancellation registration of each right to collateral security of this case No. 2 and No. 3 of this case was illegal, all of the plaintiff's claims against the defendant Kim Jong-dong, Gyeong, corporation, △△△, △○○.

5. Conclusion

Thus, the plaintiff's lawsuit against the defendant Lee ○, Lee △△, Kim △△, and Kim ○ is unlawful.

All of them are dismissed. The plaintiff's remaining defendants' claims against the others are dismissed as they are without merit.

this decision is delivered with the judgment of the court below.