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(영문) 창원지방법원거창지원 2019.08.13 2019가단10571
근저당권말소
Text

1. All of the plaintiff's lawsuits shall be dismissed.

2. The costs of lawsuit shall be borne by each person;

Reasons

1. Determination as to the legitimacy of the instant lawsuit

A. The Plaintiff, as a creditor of indemnity against F, claimed that the establishment registration of the instant collateral in the name of G (Death on May 30, 2014) established in the name of G (Death) with respect to real estate listed in the separate sheet, was extinguished by prescription, and sought against G’s heir to implement the registration procedure for cancellation of the establishment registration of the instant collateral.

B. The cancellation registration refers to a registration that is executed for the purpose of legally extinguishing the entire registration in a case where all the registered matters are inconsistent with the substantive relations in the original or latter part, and there is no legal interest to seek cancellation for the registration already cancelled.

(See Supreme Court Decision 2014Da66116 Decided February 12, 2015, etc.). C.

On May 21, 2019, after the filing of the instant lawsuit, the registration of the establishment of a neighboring mortgage of this case where the Plaintiff seeking the registration of the cancellation against the Defendants was already cancelled due to a compulsory auction on May 21, 2019. Thus, the Plaintiff had no legal interest in seeking the cancellation of the registration of the establishment of a neighboring mortgage of this case.

2. Accordingly, in a case where the Plaintiff’s respective lawsuits against the Defendants are illegal as the interests of the lawsuit are nonexistent, and the defect cannot be corrected as an unlawful lawsuit, the lawsuit may be dismissed by a judgment without holding any pleadings (see Article 219 of the Civil Procedure Act). Accordingly, all of the lawsuits are dismissed, and it is so decided as per Disposition.

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