Whether a request for cancellation of the right to collateral security may be made when a decision of approval of the successful bid has been rendered through the execution of collateral security.

Even if the decision to grant a successful bid has already been made due to the execution of the right to collateral security, as long as the registration of establishment of the right to collateral security still remains on the register, the person who created the right to collateral security may request the implementation

Article 226 of the Civil Procedure Act

Plaintiff 1 and one other

Defendant

Seoul Central District Court (72 Gohap2805) in the first instance trial

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

1. It is confirmed that the Plaintiff 1’s obligation to purchase the goods amounting to KRW 1,646,050 against the Defendant does not exist.

2. On February 5, 1972, the Defendant shall implement the procedure for registration of cancellation of the establishment registration of the establishment of the neighboring real estate registered in the attached list to Plaintiff 2 on February 5, 1972.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

1. The total sales contract between the plaintiff 1 and the defendant on February 2, 1972 concerning the electrical harassment was concluded, and the plaintiff 2 secured the credit payment obligation of the plaintiff 1 under the above contract. As to each real estate in the attached list of the plaintiff 1, as to the real estate in which the plaintiff 2 secured the credit payment obligation of the plaintiff 1 under the above contract, the defendant was received from the defendant on February 5, 1972, the Yongsan District Court No. 2957 on January 28, 1972, and the registration of establishment of a mortgage amount of KRW 1,50,000 on the ground of the mortgage contract on January 28, 1972, there is no dispute between the parties, and the whole purport of the testimony and pleading of the non-party 1, the above total sales contract cannot be acknowledged as an agreement with the following contents, and there is no counter-proof.

(1) The defendant may not grant the plaintiff 1 with the authority to make a total sales in the area north of the Seoul Han River, which is the defendant's product, to supply the plaintiff with the volume of credit on a timely basis, and may not grant the plaintiff 1 with the total sales or similar authority without the above plaintiff's consent in the above area.

(2) The plaintiff 1 shall pay to the defendant three occasions on the second day, the 12th day, the 22th day, the 22th day, etc. each month based on the amount received.

However, during the three-month period from February 1, 1972 to April 30 of the same year, even if the credit amount is accumulated to be 1,500,000 won per month up to the limit of 500,000 won per month, the defendant shall be allowed to do so, and as long as the credit amount does not exceed 1,50,000 won, the defendant shall continue to supply the goods to the above plaintiff.

(3) The Plaintiff 1, as a means of securing the repayment of the above credit amount, shall set up a right to collateral security of KRW 1,500,000 with respect to each immovable set forth in the attached list, prior to the Defendant.

However, in addition to the maximum debt amount of KRW 500,000, this may be set at KRW 2,000,000.

In addition, the defendant's exercise of this mortgage should be exercised after obtaining the certificate of balance of the above plaintiff.

(4) When the above credit limit amount is set at KRW 500,000, the defendant must implement the registration procedure for cancellation of the above collateral security right.

(5) The term of validity of this contract shall be one year, and if the balance of credit payment as of the expiration date of the contract is less than 1,000,000 won, the contract shall be automatically extended.

(6) When the defendant violates the above contract terms, the defendant shall waive the full amount of credit payment claim against the above plaintiff, and when the above plaintiff has terminated the contract, he shall compensate the defendant for damages incurred thereby.

2. Meanwhile, there is no dispute over the establishment of Gap evidence 6 (No. 6), Eul evidence 1 (transaction place), official portion, and receipt portion of the non-party 2's testimony, and the whole purport of the testimony of the non-party 1, the witness, non-party 1, and the non-party 3 (excluding the part not trusted among the testimony of the witness non-party 2) are presumed to have been presumed to have been established, and since it is difficult for the plaintiff 1 to conclude the above total sales contract with the defendant from November 1, 1971 to enter into the above total sales contract with the non-party 2, the non-party 1 and the non-party 3's testimony of the non-party 4 to be presumed to have been established on February 2, 1972, and the defendant's testimony cannot be found to have been delivered to the non-party 1, the non-party 2, who had been in violation of the above contents of the contract without consent of the plaintiff 1, the non-party 4 and the defendant supplied the above products to the non-party 1, the above non-party 1, the above.

Although the Defendant agreed to transfer the above total amount of credit three times a month under the above total sales contract, the Defendant asserted that the above contract was terminated on April 23, 197, since the credit amount of 1,646,050 won as of April 15, 1972, the Defendant did not pay the above contract amount of 1,646,050 won. However, it is difficult to believe some of the testimonys of the above witness 4 and 2 as to the termination of the contract, and there is no evidence to find that the above Plaintiff violated the contents of the above total sales contract, and there is no reason to deem that the above Plaintiff violated the above contract's total amount of 1,646,050 won from 00 to 100,000 won as of April 16, 1972, it cannot be viewed that the above contract amount of 100 to 200,000 won, including the above total amount of credit amount of 1,646,50 won prior to the above contract amount of 1000.

In addition, the defendant's supply of a sexual harassment product to the non-party 3 with the consent of the plaintiff 1. Thus, the defendant's defense is not contrary to the above general sales agreement. However, since there is no evidence to acknowledge it except the testimony of the non-party 3 and the non-party 2 of the court below's witness and the non-party 2, the above defendant's defense is without merit.

In addition, the defendant argues that "the defendant waives the whole remaining remaining remaining after the plaintiff 1's refusal of a contract" in Article 7 of the sales agreement is null and void in violation of Article 104 of the Civil Code, but since the provision is deemed to be in violation of Article 104 of the Civil Code, it cannot be deemed to be a violation of Article 104 of the Civil Code, since the whole written agreement on the sales agreement No. 1, the defendant's assertion to the effect that the execution of the right to collateral security was completed on October 31, 1972, and the defendant argued to the effect that the right to collateral security was completed. However, even if the decision on the approval of the successful bid was made, it is obvious that the establishment of the right to collateral security remains in existence, the plaintiff's complaint cannot be brought about by the permission of the successful bid, as long as it is obvious that the establishment of the right to collateral security remains in existence.

3. Thus, as seen above, the obligation of KRW 1,646,050, which Plaintiff 1 had borne by the Defendant as of April 16, 1972, was terminated due to the Defendant’s violation of the terms and conditions of the contract. Accordingly, the above collateral security right established to secure the above credit payment has also been extinguished. Thus, the Defendant is deemed to have the obligation to perform the registration procedure for cancellation of the above collateral security right. Thus, the Defendant’s claim against Plaintiff 1 and Plaintiff 2’s claim against the Defendant, which is to obtain confirmation of the non-existence of the above credit security payment obligation, are all reasonable, and thus, they shall be cited respectively. The judgment of the court below, which is the purport of the above appeal, is just, and this appeal is without merit, and it is so decided as per Disposition by the application of Articles 384, 95, and 89 of the Civil Procedure Act.

Judges Noh Jeong-hee (Presiding Judge)