Whether repayment and cancellation of registration are in the relationship of simultaneous performance, if the third party acquisitor of the mortgaged real estate repays the mortgaged debt in order to cancel the registration of establishment of a neighboring mortgage.

Since the obligation to pay the secured debt in the right to collateral security is a prior performance obligation, filing a lawsuit to cancel the registration of the establishment of the right to collateral security through the simultaneous performance of the obligation to pay the full amount of the secured debt is the future performance lawsuit, and such future performance lawsuit is allowed if there is a special circumstance that the mortgagee would not perform the registration procedure even if he denies the existence of the obligation to cancel or refuses to perform the obligation, and even if the third party purchaser would extinguish the above secured obligation by first repayment of the obligation, the mortgagee would not perform the registration procedure.

Article 229 of the Civil Procedure Act

Plaintiff

Bank of Korea

Seoul Central District Court (72 Gohap6716) in the first instance trial

The appeal is dismissed.

Costs of appeal shall be borne by the plaintiff.

The plaintiff's attorney shall revoke the original judgment.

On August 22, 1968, the defendant received gold KRW 3030,00,00 and performed the procedure for cancellation of the registration of the establishment of a neighboring mortgage with the maximum debt amount of KRW 1,330,000,00 for the debtor, non-party 1, the maximum debt amount of the non-party 1,330,000,000 for the real estate recorded in the attached list.

The costs of lawsuit are assessed against the defendant in both the first and second trials.

The plaintiff was originally owned by the non-party 2. The plaintiff purchased from the above non-party on October 11, 1971, and purchased from the above non-party on May 4, 1972 and claimed that the registration procedure for cancellation of the establishment registration of the above real estate was made under the plaintiff's name on the ground of sale as of May 4, 1972. The non-party 2, before the plaintiff acquired ownership of the above real estate, was the real estate which was owned by the non-party 2, before the plaintiff acquired the ownership of the above real estate, and had completed the registration procedure for cancellation of the establishment registration of the establishment of the above real estate under the non-party 1 as the debtor as the non-party 1 corporation. The plaintiff was seeking to cancel the registration of the establishment of the establishment of the above real estate under the non-party 2's own title as the third party purchaser of the above real estate, and the defendant first received the above amount of KRW 303,000,000,000,0000,000.

However, in this case, the plaintiff's assertion that the claim secured by this real estate is KRW 30,00,000 won is not clearly disputed by the defendant, and therefore, it shall be deemed that the amount of credit secured by this real estate between the plaintiff and the defendant has been confirmed. Thus, even if the plaintiff paid the above debt, there is no evidence to acknowledge the necessity of the claim in advance, such as denying the existence of the obligation to cancel the registration of the establishment of the above real estate or rejecting the performance of the obligation, etc., the plaintiff's claim in this lawsuit shall be deemed to be illegal because there is no benefit of the lawsuit, so the plaintiff's claim in this case shall be deemed to be an illegal

Therefore, the plaintiff's main claim against the defendant is unlawful and thus it is dismissed. The judgment of the court below with the same conclusion is just, and the plaintiff's appeal is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judges Go Youngk (Presiding Judge)