(영문) 서울중앙지방법원 2016.09.01 2015가합580997

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(영문) 서울중앙지방법원 2016.09.01 2015가합580997

근저당권말소

Text

1. The plaintiffs' respective claims against the defendants are dismissed in entirety.

2. The costs of lawsuit are assessed against the plaintiffs.

Reasons

1. Basic facts

A. Plaintiff AP is a member of the BE church (hereinafter “instant church”), and the rest of the Plaintiffs are the members of the instant church.

B. As to each real estate indicated in the separate list owned by the instant church (hereinafter “each of the instant real property”), each of the instant real property was jointly secured, and each of the instant real property was established on January 3, 2014, with the maximum debt amount of KRW 1,100,000,000, and each of the instant churches and collateral security holders as Defendant BD with the debtor as Defendant BD.

(hereinafter) The fact that there is no dispute over the establishment registration of each of the instant units, including the establishment registration of each of the said four units of establishment (hereinafter referred to as the "registration of establishment of each of the instant units"), the entries in Gap evidence 1-1, 2, and 4, and the purport of the whole pleadings.

2. Determination as to the defendants' main defense

A. The lawsuit concerning the defendants' collective ownership of the church's defense contents is unlawful in the lawsuit of this case filed by some of the members of the church of this case as plaintiff, although all the members of the church of this case must become the parties to the lawsuit.

B. We examine the judgment, the lawsuit on the collective property can only be filed in the name of an association which is not a juristic person through a resolution of a general members' meeting or by all its members as a party to the lawsuit as an essential co-litigation, and such a legal doctrine also applies to the case where a lawsuit is filed as an act of preserving collective property, and a lawsuit filed by a non-juristic person without a resolution of a general members' meeting or a part of the members of the non-juristic person's association shall be deemed unlawful due to lack of special authorization of the lawsuit (see, e.g., Supreme Court en banc Decision 2004Da44971, Sept. 15, 2005). According to the entries and the purport of Gap's evidence No. 4,

참조판례

-대법원 2005. 9. 15. 선고 2004다44971 전원합의체 판결

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