The case holding that no change was made on the basis of the claim

In the event that the registration of ownership transfer has been completed due to the successful bid by the execution of the right to collateral security while filing a lawsuit seeking the cancellation of the registration of ownership transfer on the ground that the registration of ownership transfer was null and void, and the registration of ownership transfer was revoked ex officio, the registration of ownership transfer on the ground of the successful bid based on the right to collateral security is not modified

Article 235 of the Civil Procedure Act

Supreme Court Decision 65Da1545 delivered on January 31, 1965 (Kakadd 1482, Supreme Court Decision 14 ① civil 36 delivered on the summary of the decision, Article 450(14)41 delivered on November 28, 1972 (Supreme Court Decision 10287 delivered on the summary of the decision, Article 235(47)940 of the Civil Procedure Act)

Plaintiff

Seoul Bank, Inc.

Busan District Court (73 Gohap601)

The original judgment shall be revoked.

On July 3, 1974, Busan District Court No. 28931, Sep. 29, 1973, the defendant performed the procedure to cancel the registration of transfer of ownership due to the Busan District Court's decision of permission of successful bid.

All the costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

(Modification of the purport of the claim in the trial)

As the main defense of safety, the defendant claims for the cancellation of the registration of transfer of ownership registered in the name of the defendant on the real estate registered in the separate sheet at the court below of first instance on the ground that the plaintiff requested the cancellation of the registration of transfer of ownership registered in the name of the defendant on the real estate registered in the separate sheet at the court below, but the alteration of the claim was not permitted on the basis of the lawsuit. However, if there is a difference in the resolution method due to the same living facts or a dispute over the same economic interests, it would be said that there is no change in the foundation of the lawsuit. In this case, the plaintiff is seeking the cancellation of the registration of transfer on the ground of the registration of transfer of ownership registered in the front of the defendant on the ground that the registration of transfer of ownership was null and void on the ground that the registration of transfer of ownership was completed in the first place on the ground that the registration of transfer of ownership was null and void on the premise that the registration of transfer of ownership was revoked on the ground that the registration of transfer of ownership was made ex officio, and the above change in the plaintiff's claim can not be accepted.

As to the following merits, Finine shall be examined:

The plaintiff's real estate was owned by the non-party 1 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 3 were the non-party 1 and the non-party 2 were the debtor, and the non-party 1 and the defendant was the non-party 4 were the non-party 1 and the non-party 5 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 3 were the non-party 1 and the non-party 4 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 4 were the non-party 1 and the non-party 1 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 3 were the non-party 1 and the non-party 3 were the non-party 1 and the defendant 2 were the non-party 1.

Then, even if Nonparty 3 did not receive lawful authority from Nonparty 1 in establishing a right to collateral security agreement, the Defendant’s attorney argued that Nonparty 3 obtained Nonparty 1’s seal and seal imprint, etc. from Nonparty 4 as above, and thus, Nonparty 1 should be held responsible at least for the expression agent, so if the act of Nonparty 1 becomes an expression agent, it must be shown in the same way as to the third party’s expression agent under Article 125 of the Civil Act, and it should be deemed that the act of Nonparty 1’s agent’s use of the right to collateral security agreement was an act after the lapse of his agent’s use of the right to collateral security agreement, and it is obvious that Nonparty 4 and Nonparty 1’s agent knew or believed the other party as his agent at the time of the above transaction, and thus, Nonparty 4 did not use Nonparty 1’s personal seal imprint as his agent, but did not use the right to collateral security certificate as his agent under the name of Nonparty 1 as his agent under the name of Nonparty 1 as his agent.

However, in full view of the statements in Gap evidence No. 1-4 and the testimony of the court below and the non-party No. 3, who are not disputed in the establishment, the non-party No. 3, who requested the non-party No. 1 to borrow the amount of two million won as business fund from other persons, on January 4, 1964, shall prepare the money of 1.3 million won and borrow the money from other persons, and as a security to secure this, the non-party No. 3 shall complete the registration of establishment of a mortgage with the maximum debt amount of three million won as the mortgagee. However, although the non-party No. 1 did not actually engage in a transaction since the business fund was not required after the establishment, it is recognized that only the above collateral registration remains on the register, the non-party No. 1 should be aware that the right to represent the money of the non-party No. 3 was granted to the non-party No. 1 as a representative of the right to represent the real estate or the right to represent the non-party No. 1 as the basic right to represent and the defendant No. 3.

In addition, since the expression agency is about the other person's act other than the authorized person's act, it is interpreted that the other person's act should be justified or neglected on the basis of the principle of private autonomy, and since the safety of transaction has become a highly advanced era in which transaction is safe, it is interpreted as a system for protecting the seal, certificate of right, power of attorney, etc. at the risk of sacrifice of the person himself/herself for the safety of transaction and contributing to the safety of transaction.

However, it is difficult to view that Nonparty 1 and Nonparty 2 were able to use Nonparty 1’s seal and to use Nonparty 1’s seal and to use Nonparty 2’s seal and to use Nonparty 1’s personal seal and to use Nonparty 2’s signature and seal impression for the following reasons: (a) it is difficult for the Defendant to use Nonparty 1’s personal seal and to use Nonparty 1’s personal seal impression and to use Nonparty 2’s personal seal impression and to use Nonparty 1’s personal seal impression and to use Nonparty 3’s personal seal impression and to use Nonparty 1’s personal seal impression and to use Nonparty 2’s personal seal impression and to use Nonparty 1’s personal seal impression as his agent; and (b) it is difficult for the Defendant to use Nonparty 1’s personal seal impression and to use Nonparty 2’s personal seal impression and to use Nonparty 3’s personal seal impression and to use Nonparty 1’s personal seal impression and to use Nonparty 3’s personal seal impression as his agent; and (c) it is reasonable for the Defendant to use Nonparty 1’s personal seal and seal.

Finally, Defendant’s legal representative concluded the above contract to establish a mortgage between Nonparty 1 and Nonparty 3 without Nonparty 1’s consent, and Nonparty 1’s registration of establishment of a mortgage to Defendant 6’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s third party’s 6th party’s 126th party’s first party’s 126th party’s 126th party’s 126th party’s 19th party’s 16th party’s 6th party’s 16th party’s 6th party’s 6th party’s 2nd party’s 196th party’s 1.

Therefore, the establishment registration of a neighboring real estate completed before the defendant is null and void. As a result of the defendant's execution of the above right to collateral security, the defendant obtained a successful bid on September 29, 1973 with regard to the real estate of this case by defendant defendant, and completed the registration of ownership transfer before the defendant as provided in Article 28931 on July 3, 1974. Thus, the registration of ownership transfer was completed upon the establishment registration of a neighboring mortgage over which the cause of the registration of ownership transfer completed before the defendant is null and void. Thus, this is ultimately made upon the establishment registration of a neighboring mortgage over which the cause of the registration of ownership transfer made before the defendant is null and void. Thus, the plaintiff's claim for cancellation of this case is justified and therefore, the plaintiff's claim for the registration of ownership transfer as an act of preservation of the real estate of non-party 1, who is the property successor to the non-party 1, is accepted, and thus, will be revoked in the sense that the original judgment was declared null and void, but it is revoked by applying Article 96 and order of the same Act.

[Attachment]

Judges Park Jae-sik (Presiding Judge)