(영문) 청주지방법원 2017.01.12 2015나4994 | 리걸엔진

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(영문) 청주지방법원 2017.01.12 2015나4994

근저당권설정등기말소 등

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1. Revocation of the first instance judgment.

2. The plaintiff's lawsuit of this case against the defendants is dismissed in entirety.

3. The appeal costs.

Reasons

1. Determination ex officio as to the legitimacy of the instant lawsuit

A. The Plaintiff, ex officio, examined the legitimacy of the instant lawsuit, seeking to implement the procedure for the cancellation of registration of the establishment of each of the following mortgage registered in the name of the Defendants (hereinafter “the establishment of each of the following mortgage registered in the instant case”) completed on March 7, 2013 by the Cheongju District Court, Cheongju District Court Branch No. 9628, Mar. 7, 2013, against the Defendants.

B. In the course of the lawsuit seeking the implementation of the procedure for registration of cancellation of the registration of the establishment of a neighboring real estate, if the registration of the establishment of a neighboring real estate was cancelled on the ground of auction at the auction procedure, there is no legal interest in seeking the cancellation of the registration of the establishment of a neighboring real estate (see Supreme Court Decision 2002Da57904, Jan. 10, 2003). According to each certified copy of the register attached to the application for the alteration of the date submitted by the Plaintiff on July 19, 2016, the Defendants filed an application for the voluntary auction of each of the instant real estate with the Cheongju District Court Cheongju Branch Branch N, the registration of the establishment of a neighboring real estate of this case was entirely sold at the auction procedure, and it was recognized that each of the instant real estate was cancelled on the ground of sale due to a voluntary auction on November 9, 2015, as long as the registration of the establishment of a neighboring real estate of this case was cancelled on the ground of voluntary auction.

2. Thus, the plaintiff's lawsuit against the defendants is unlawful and thus all of the lawsuits shall be dismissed. The judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance shall be revoked and all of the lawsuits against the defendants shall be dismissed. It is so decided as per Disposition.

참조판례

-대법원 2003. 1. 10. 선고 2002다57904 판결

유사 판례

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