Plaintiff (Law Firm Pakistan, Attorneys Cha Chang-mo et al., Counsel for plaintiff-appellant)

NexEX Construction Co., Ltd. (Law Firm LLC, Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

December 5, 2018

1. The defendant shall be the plaintiff.

A. Of each real estate listed in the separate sheet Nos. 1 through 7, the registration procedure for cancellation of the provisional registration of the right to claim a transfer of shares completed by the Suwon District Court No. 13526, Apr. 14, 2009, as to the shares of Nonparty 2-4/10 and the shares of Nonparty 3-1/10 of the shares of Nonparty 3, is implemented;

B. As to the real estate listed in No. 8 of the annexed list No. 8, the Suwon District Court Yangyang-si registry office of the Suwon District Court will implement the procedure for cancellation of the registration of the right to claim transfer of ownership completed on April 14, 2009.

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

The same shall apply to the order.

1. Basic facts

A. Nonparty 2 and Nonparty 1 were married on October 23, 1978, but they were divorced on May 29, 2015, and Nonparty 3 and Nonparty 4 were the children of Nonparty 2 and Nonparty 1. The Defendant was registered as the representative director from September 30, 202 to March 23, 2009 by Nonparty 2, who was operated from December 1, 1989 by Nonparty 1 and Nonparty 6, who was his/her father, and Nonparty 1 was registered as the representative director from March 23, 2009 to December 26, 2010.

B. On January 15, 2009, Nonparty 1 and Nonparty 2 as the agent of Nonparty 2, Nonparty 3, and Nonparty 4 (hereinafter “Nonindicted 2, etc.”) made a promise with the Defendant to sell and purchase each real estate listed in the No. 1-7 list of co-ownerships 1-7, including Nonparty 2-4/10, and 1/10 of each of the co-ownerships of Nonparty 3 and Nonparty 4, to Nonparty 2, etc., with the contractor Nonparty 2, etc., Nonparty 1 entered into the promise to sell and purchase each of the real estate listed in the No. 8 of the separate list owned by Nonparty 2 (hereinafter “the first purchase promise”), and the real estate listed in the No. 8 of the separate list owned by Nonparty 2 (hereinafter “each of the above real estate”). In accordance with the separate name, each of the above real estate was purchased and sold by Nonparty 2 and the Defendant (hereinafter “instant No. 2”).

C. Of the real estate Nos. 1 through 7 of this case, the Defendant completed the provisional registration of the claim for share transfer (hereinafter “the provisional registration of this case”) as to the share No. 2-4/10 and the share No. 1/10 of the non-party No. 3 and non-party No. 4 on the ground of the first sale promise of this case on April 14, 2009. The Defendant completed the provisional registration of the claim for share transfer (hereinafter “the provisional registration of this case”) under the Suwon District Court No. 13526 on April 14, 2009 on April 14, 2009 as to the real estate No. 8 of this case as the provisional registration of the Suwon District Court No. 13527 on April 14, 2009 (hereinafter “the provisional registration of this case”). The Defendant completed the provisional registration of the above provisional registration

D. Of the instant real estate No. 1 through 7, the Plaintiff completed the registration of establishment of a collateral security (hereinafter “instant collateral security”) with respect to Nonparty 2-2’s share 4/10, Nonparty 3’s share 1/10, and the instant real estate No. 8 on November 14, 2017 on the ground of a contract to establish a contract on November 14, 2017, under the Head Office of Suwon District Court No. 53928, Nov. 21, 2017, the Plaintiff completed the registration of establishment of a collateral security (hereinafter “instant collateral security”).

E. On January 17, 2011, Nonparty 2, etc. filed a lawsuit against the Defendant for the cancellation of each provisional registration of this case based on ownership ( Daegu District Court Decision 201Gahap677, Daegu District Court Decision 2011Gahap67, hereinafter “the previous lawsuit of this case”) by asserting that “Nonindicted 1 voluntarily completed the provisional registration of this case on the ground that he/she kept his/her seal imprint and a certificate of personal seal impression in the name of Nonparty 2, etc.” (hereinafter “the previous lawsuit of this case”). However, on May 25, 2012, the said court rendered a judgment dismissing Nonparty 2, etc.’s claim on the ground that “Nonindicted 1 completed each provisional registration of this case as he/she was granted the authority to dispose of real estate by Nonparty 2, etc.” and the said judgment was finalized on June 14, 2012.

F. On November 4, 2014, Nonparty 2, etc. filed a lawsuit against the Defendant for the cancellation of each provisional registration of this case based on ownership by asserting that “each of the instant provisional registrations was made in accordance with each of the instant trade reservations forged by Nonparty 1, and thus null and void, or each of the instant trade reservations constitutes both representation, and thus null and void.” On June 25, 2015, the appellate court rendered a judgment dismissing each of the instant provisional registrations on the ground that “the instant reservation constitutes both representation provided in Article 124 of the Civil Act, and thus null and void or cannot seek cancellation of each of the instant provisional registrations by res judicata effect of the final and conclusive judgment of the instant suit,” and the said judgment became final and conclusive on November 3, 2015.

[Ground of recognition] Facts without dispute, Gap Nos. 1-6, 10 evidence, Eul Nos. 4 and 12 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Determination on this safety defense

A. Summary of this defense

The lawsuit of this case is identical to the previous suit of this case in which the dismissal judgment has become final and conclusive, and the plaintiff constitutes a successor after the closing of argument in the previous suit of this case. The lawsuit of this case is unlawful as it conflicts with the res judicata of the previous suit

B. Determination

According to the facts of recognition under Paragraph (1), Nonparty 2, etc. filed a claim for cancellation registration of each provisional registration of this case against the Defendant as an exercise of the right to claim removal of interference based on ownership in the previous suit of this case, and the Plaintiff filed a claim for cancellation registration of each provisional registration of this case against the Defendant as an exercise of the right to claim removal of interference based on the right to collateral security in the lawsuit of this case. Since the subject matter of lawsuit of this case differs from that of the previous suit of this case, res judicata effect of the final judgment of the previous suit of this

3. Judgment on the merits

A. Summary of the cause of the claim

Each of the instant reservations was prepared by Nonparty 1 as the representative of Nonparty 2, etc. and the Defendant. Each of the instant reservations constitutes a bilateral act as stipulated in Article 124 of the Civil Act, and thus null and void. The Plaintiff seeks cancellation of each of the instant provisional registrations against the Defendant as an exercise of the right to claim exclusion of interference based on the right to collateral security.

B. Determination

Where any real estate has been registered, it is presumed that it has been duly made in the cause and procedure unless there are any special circumstances (see Supreme Court Decision 2001Da72029, Feb. 5, 2002, etc.). Of the real estate Nos. 1 through 7 of this case, the fact that the registration of establishment of a mortgage of this case was completed on the ground of the contract on Nov. 14, 2017 with respect to the non-party Nos. 1 through 7 of this case, the non-party No. 2-4/10, the non-party No. 3-1/10, and the non-party No. 8 real estate of this case, is presumed as legitimate

If a mortgagee holds control over the exchange value of the mortgaged property from the creation of the mortgage to the compatibility thereof, and the exercise of the mortgagee's preferential repayment right is hindered, such as where the owner of the mortgaged property or a third party physically destroys or damages the mortgaged property or where there is a concern that the exchange value of the mortgaged property might decline due to any other act, etc., the mortgagee may claim a removal of the disturbance by exercising the mortgagee's right to claim a removal of disturbance based on the mortgage (see, e.g., Supreme Court Decision 2003Da58454, Jan. 27, 2006). Therefore, if the provisional registration of this case is invalidated, the plaintiff, who is the mortgagee, may seek a

In a civil trial, even if not bound by the facts established in the judgment on other civil cases, etc., the facts already established in the relevant civil case are valuable evidence unless there are special circumstances (see Supreme Court Decision 97Da49053, Feb. 24, 1998, etc.). According to the evidence No. 2, it can be recognized that Nonparty 1 representing Nonparty 2, etc. and entered into each of the instant contracts with Nonparty 2, etc. on behalf of the Defendant, etc., and thus, each of the instant contracts constitutes both acts as prescribed in Article 124 of the Civil Act, and thus, is null and void.

Since each of the instant provisional registrations, which was the cause of each of the instant provisional registrations, is null and void, the Defendant is obligated to perform the procedure for cancellation registration of the instant provisional registration, which was completed with respect to Nonparty 2-4/10 of the instant real estate 1-7, and Nonparty 1/10 of the instant real estate 1-7, and the procedure for cancellation registration of the instant provisional registration, which was completed with respect to the instant real estate 8 real estate.

C. Judgment on the defendant's defense

1) Summary of the defense

The Plaintiff was Nonparty 2’s KIB and completed the registration of creation of a mortgage of this case on each of the instant real estate even though there was no credit and debt relationship with Nonparty 2. The contract establishing a mortgage of this case on November 14, 2017, which was the cause of the instant mortgage, was null and void by a false agreement. Even if the secured debt of this case was incurred, the Plaintiff received the transfer of the right from Nonparty 2 from Nonparty 2, and received the payment of KRW 1,649,585,201 from the auction procedure on the real estate owned by Nonparty 1 (Skcheon District Court Gangnam Branch Branch Branch Branch Office 2016, 1679). The secured debt of this case was fully repaid. Ultimately, since the secured debt of this case was invalid, the Plaintiff, who is not a legitimate mortgagee, is not entitled to seek the cancellation of each provisional registration of this case against the Defendant. Moreover, Nonparty 1 obtained a prior approval from both parties with respect to each of the instant real estate by obtaining the right of disposal from Nonparty 2, etc.

2) Determination

A) Whether a conspiracy constitutes false representation

According to the evidence Nos. 8, 9, and 3, Nonparty 2, etc. continued a number of lawsuits from around 2009 with Nonparty 1 and Defendant, etc. on June 28, 2012, upon delegation of several lawsuits to Nonparty 5 by attorney-at-law, and entered into a contract with Nonparty 5 to pay 10% of the winning amount as a performance bonus, and the Plaintiff, who is Nonparty 2’s Cho Jae, guaranteed the above performance bonus payment obligation against Nonparty 5 by attorney-at-law. There is no evidence to prove that the Plaintiff entered into a contract with Nonparty 2 on November 14, 2017, which was the cause of the instant right to collateral security, in collusion with Nonparty 2, even though there is no credit and debt relationship with Nonparty 2. This part of the defense is rejected.

B) Whether the secured obligation is extinguished

The evidence No. 15 alone is insufficient to recognize the fact that Nonparty 2’s debt to the Plaintiff, which is the secured debt of the instant right to collateral security, was extinguished by full repayment, and there is no other evidence to acknowledge it. This part of the defense is not acceptable.

C) Whether prior approval has been granted for both representation

According to the evidence No. 2, the fact that Nonparty 1 was delegated with the authority to dispose of each of the instant real estate by Nonparty 2, etc. is recognized. However, the above fact alone is insufficient to recognize that Nonparty 1 obtained prior permission from Nonparty 2, etc. on both parties’ act, and there is no evidence to prove that Nonparty 1 obtained prior permission from Nonparty 2, etc. on both parties’ act in addition to being delegated with the authority to dispose of each of the instant real estate by Nonparty 2, etc.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.

[Attachment]

Judges Kim Jong-jin (Presiding Judge)