(영문) 창원지방법원밀양지원 2016.10.12 2015가단11399

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(영문) 창원지방법원밀양지원 2016.10.12 2015가단11399

근저당권말소

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1. The instant lawsuit shall be dismissed.

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

Reasons

1. Facts of recognition;

A. The Plaintiff completed the registration of ownership transfer on September 28, 2005 on the instant real estate based on sale on September 27, 2005.

B. As to the instant real estate, on May 13, 2008, the establishment registration of the instant mortgage was completed with regard to the instant real estate as the Defendant, the debtor, the maximum debt amount of KRW 70 million.

C. The Defendant applied for the auction of the instant real estate with the Changwon District Court close support D based on the instant collateral security, and in the above auction procedure, E received a successful bid and completed the registration of ownership transfer on September 7, 2015, and accordingly, the registration of ownership transfer was revoked on the same day.

【Ground of recognition】 The fact that there has been no dispute, Gap evidence 1, Eul evidence 1 and 2, and the purport of the whole pleadings

2. Determination on this safety defense

A. The Plaintiff asserted that the instant mortgage contract was concluded and null and void by a unauthorized representative, and that the establishment registration of the instant neighboring mortgage was also null and void. In the instant case seeking the cancellation of the establishment registration of a neighboring mortgage, the Defendant asserts to the effect that the instant lawsuit is unlawful, as the principal safety defense, there is no interest in the lawsuit seeking the cancellation of the establishment registration of a neighboring mortgage.

B. There is no legal interest in seeking the cancellation of the registration of creation of a neighboring mortgage if the registration of creation of a neighboring mortgage was cancelled on the ground of successful bid while the lawsuit seeking the implementation of the registration procedure for cancellation of the registration of creation of a neighboring mortgage was pending.

(see, e.g., Supreme Court Decision 2002Da57904, Jan. 10, 2003). The fact that the establishment registration of a mortgage of this case was cancelled on the ground of sale due to a voluntary auction is as seen earlier. Thus, the Plaintiff has no legal interest in seeking the cancellation of the establishment registration of a mortgage of this case.

3. As such, the instant lawsuit is unlawful, and it is so decided as per Disposition.

참조판례

-대법원 2003. 1. 10. 선고 2002다57904 판결

유사 판례

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