Claim for recovery of the establishment registration of a neighboring mortgage

In the auction procedure, since the right to collateral security existing in the real estate is naturally extinguished when the auction is held in the auction procedure, it is not possible to seek the execution of the procedure for restoration registration of the right to collateral security already extinguished or to seek the consent against the present owner.

1. For the plaintiffs:

A. As to the land indicated in the separate sheet, Defendant ○○○○ performed the procedure for registration of recovery of the establishment of a neighboring mortgage completed under No. 19226, Apr. 16, 2003 by the same court, which was registered for cancellation by No. 51063, which was registered on Oct. 4, 2003, each Incheon Regional Office of dong, Incheon, Incheon, concerning the land listed in the separate sheet as to the land listed in the separate sheet.

B. As to the land indicated in the separate sheet, Defendant ○○○○ has expressed his/her consent on the land indicated in the separate sheet. Defendant ○○○○, with respect to the land listed in the separate sheet, as to the land listed in the separate sheet, and Defendant ○○, with respect to the registration of recovery of the establishment registration of a neighboring mortgage completed under No. 19226, Apr. 16, 2003 by the same court, which was revoked and registered on Oct. 4, 2003 as of the land listed in the separate sheet.

2. Defendant 00/3300 of the Plaintiff’s share among the three land listed in the separate sheet to the Plaintiff ○○○○, as to the registration of the restoration of the establishment of a neighboring mortgage completed by the same court No. 19226, Apr. 16, 2003, which was registered as cancelled on October 4, 2003 by the same court, Dongcheon District Court, Incheon, Dongcheon Registry of 51063, regarding the registration of the restoration of the establishment of a neighboring mortgage.

3. The plaintiffs' claims against Defendant ○○, Incheon Metropolitan City ○○○, ○○○, ○○○, Korea, 1,5-dong Saemaul Savings Depository, ○○○○○, and the claims against Defendant ○○○○, and the remaining claims against Defendant ○○ by the plaintiff ○○, and the remaining claims against the defendant ○○○, respectively, are dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiffs and the defendant ○○○○, ○○○, ○○○, ○○○○, and ○○○○○○, among the part arising between the plaintiffs and the defendant ○○○○○, the part arising between the plaintiffs, and 1/3 of the part arising between the plaintiffs and the defendant ○○○○ and the defendant ○○○○○, the two-thirds of the above defendants, and the part arising between the plaintiffs and the defendant ○○○, Incheon Metropolitan City ○○○, ○○○, ○○○, ○○○, 1,5 Dongs, and ○○○, respectively, shall be borne by the plaintiffs

The order of Paragraph (1) and Paragraph (1) of this Article, and the defendant ○○○○ shall perform the procedure for the restoration registration of the establishment of a neighboring mortgage (hereinafter referred to as the "establishment of a neighboring mortgage of this case"), which was completed on April 16, 2003 by the Incheon District Court, Dongcheon Registry of 000 on the land listed in the separate sheet 2 (hereinafter referred to as "the land of this case 2 land"), and the procedure for the registration of the establishment of a neighboring mortgage of this case, which was completed on October 4, 2000 on April 16, 2003 by the same registry office (hereinafter referred to as "the establishment of a neighboring mortgage of this case"), as to the land listed in the separate sheet 1 (hereinafter referred to as "the land of this case"), and as to the registration of the establishment of a new mortgage of this case, the defendant ○○○○, ○○○, 1,5 Dong Do 1,5 Dong ○○ and ○○ shall consent to the registration of the establishment of a neighboring land of this case.

1. Determination on the claim on Defendant ○○, ○○, ○○, ○○, ○○○, and ○○○○

Without the plaintiffs' consent, the plaintiffs asserted that the registration of the establishment of the creation of the neighboring mortgage in this case was cancelled based on the forged application for the cancellation of the right to collateral security under the plaintiffs' name, and filed to Defendant ○○○○○ for the execution of the procedure for the cancellation of the registration of the cancellation of the establishment of the neighboring mortgage in this case as to the land of this case, the execution of the procedure for the registration of the cancellation of the establishment of the neighboring mortgage in this case as to the land of this case, to Defendant ○○○○○○○○, to Defendant 1 as to the land of this case, and to Defendant ○○○○○○ for the declaration of consent as to each registration of the establishment of the right to collateral security in this case as to the land of this case as to

2. Determination on the claim on Defendant ○○, Incheon Metropolitan City ○○○, ○○○, ○○○, Korea, 1, 5 Dong community credit cooperatives, ○○○, and ○○○○○

(a) Basic facts;

(1) The Plaintiffs, as construction business operators, concluded each subcontract contract with Defendant ○○○ to newly build three multi-family housing units on the ground of the instant 1-3 land (the sum of these two and each of the instant land; hereinafter referred to as the “instant land”). As to the instant three new multi-family housing units (hereinafter referred to as the “instant construction”).

Plaintiff Name

The date of conclusion of contract

(C) Contents of the project

Category caused Construction Costs

Catched Construction Costs

○ ○

202.6

Changho and Miscellaneous Corporation

98,800,000

+ + Additional construction cost 5,000,000

83,000,000 won

○ ○

February 10, 2002

Heating Facility Installation

78,000,000 won

60,000,000 won

○ ○

1 November 2001

Electrical Construction

Amount and non-payment

30,000,000 won

Luxembourg delayed the payment of the construction cost originally agreed with the Plaintiffs. Since the Plaintiffs’ suspension of construction work upon their request, around March 24, 2003, Defendant ○○○ agreed to set up a collateral security right on the instant land owned by Defendant ○○○○ and the instant land owned by Defendant ○○○○○○○ and the instant land owned by Defendant ○○○○○○ and the instant 2, and the instant land owned by Defendant ○○○○○ and the instant 2, and the instant land, which had not been paid the construction cost of KRW 160,00,00 among the instant construction works, in order to secure the payment of the agreed construction cost.

Article 331,00,000 won for each of the instant lands on April 16, 2003 according to the aforementioned collective security agreement (this does not coincide with the above maximum debt amount. However, the total sum of the construction debt claims recognized on the record does not coincide with the above maximum debt amount.). Defendant ○○○○○○, ○○○○○, and the Plaintiffs completed the registration of the establishment of a mortgage on each of the instant lands.

Around June 2003, the plaintiffs completed their respective construction works agreed upon during the instant construction work, and the construction cost unpaid to the plaintiffs after completion of the construction work is as stated above, and ○○○ Construction was not paid KRW 160 million for the said construction cost.

(v) However, around October 1, 2003, Defendant ○○○○, among the co-mortgagers of this case, intends to pay all the construction cost within one month after receiving a short-term collateral loan from the Plaintiffs other than Plaintiff ○○○○○○○○○, who is the operator of the instant joint collateral security. In short, if payment is not made within one month, Defendant ○○○○ would make one unit of multi-household housing, and they would make one unit of sales contract. Defendant ○○○○, ○○○, and ○○○○○, which were first accepted the above Defendant’s proposal, obtained the consent on the cancellation of the establishment registration of the instant collateral security from the Plaintiff ○○○, ○○, and ○○○○, who did not consent to the cancellation of the registration, around October 4, 2003.

⑹ 피고 ○○○는 위 마항 기재와 같이 원고 ○○○, ○○○와 ○○○을 기망하여 이들로부터 그 채권액 상당인 250,000,000원 상당의 재산상 이익을 취득한 사실과 원고 ○○○명의의 근저당권말소등기신청서를 위조하고 이를 제출하여 말소등기를 경료한 사실 등으로 기소되어 2006.12.21. 수원지방법원 안산지원 {2005고단2530, 2006고단791(병합)}에서 사기죄 및 사문서위조죄 등으로 징역1년6월의 유죄판결을 선고받았다(피고 ○○○는 위 유죄판결에 불복하여 항소하였고, 현재 서울고등법원 2007노219호 항소심 재판이 진행 중이다).

⑺ 한편, 이 사건 근저당권설정등기가 말소된 후 이 사건 1토지에 관하여 피고 인천광역시 옹진군, 대한민국은 압류등기를, 피고 ○○○은 각 가압류등기를, 피고 상도 1,5동 새마을금고(이하, 피고 새마을금고라고 한다), ○○○는 각 근저당권설정등기를, 피고 ○○○은 가압류등기와 근저당권설정등기를, 이 사건 2토지에 관하여 피고 인천광역시 옹진군은 압류등기를, 새마을금고는 근저당권설정등기를, 이 사건3토지에 관하여 피고 ○○○은 근저당권설정등기를 각 보유하고 있었는데 근저당권자인 피고 새마을금고의 경매신청에 의하여 2004.10.7.인천지방법원 2004타경147070호로 이 사건 1토지에 관하여 임의경매개시결정이 이루어져 위 경매가 진행된 결과 2006.12.2.피고 새마을금고에게 매각되어 2005.12.19.임의경매로 인한 매각을 원인으로 한 소유권이전등기가 마쳐졌고, 이 사건 2토지 역시 피고 새마을금고의 경매신청에 의하여 2004.11.26.인천지방법원 2004타경170063호로 임의경매개시결정이 이루어져 위 경매가 진행된 결과 2005.12.8. 김우철, 김진홍, 박칠복 등 3인에게 매각되어 같은 날 임의경매로 인한 매각을 원인으로 한 소유권이전등기가 마쳐졌으며, 이 사건 3토지는 이 사건 근저당권설정등기가 말소되기 전인 2003.6.17. 피고 ○○○에게 그 소유권이 이전되었고, 근저당권말소 이후 2003.12.1. 채권최고액 30,000,000원, 채무자 피고 ○○○로 된 피고 ○○○ 명의의 근저당권설정등기가 마쳐졌으며, 2004.4.19. 위 토지의 ⅓지분에 관하여 2003.12.29. 매매를 원인으로 피고 ○○○에게 그 소유권이 이전되었다.

[Ground of recognition] Facts without any dispute, described in Gap 1-5 evidence (each number omitted; hereinafter the same shall apply), pleading

The purport of the whole

B. Determination on the claim against Defendant ○○, Incheon Metropolitan City ○○○, ○○○, ○○○, Korea, community credit cooperatives, and ○○○○○

(1) The plaintiffs asserted that the registration of the establishment of the creation of the creation of the creation of the creation of the creation of the creation of the instant land was cancelled without the plaintiffs' consent, and sought to Defendant ○○○ for Defendant 1 to implement the procedure for the cancellation of the registration of the establishment of the creation of the creation of the creation of the instant land, and to Defendant ○○ and Korea to express their consent to the registration of the restoration of the establishment of the creation of the creation of the instant land as to the land of this case, as to the land of this case, Defendant 1 and Korea.

B. According to the reasoning of the judgment below, the court below erred by misapprehending the legal principles as to the cancellation of the registration of cancellation of the right to collateral security which has already been extinguished, and thus, the right to collateral security, which existed in the auction procedure, is naturally extinguished (see Articles 608 and 728 of the Civil Procedure Act). Thus, if the registration of establishment of the right to collateral security was illegally cancelled and the registration of restoration was not completed, the person who did not receive dividends at all as to the secured claim amount in the auction procedure for the real estate, can seek a return of unjust enrichment from the person who actually received dividends at the above auction procedure, and it is not possible to seek the execution of the procedure for cancellation of the registration of cancellation of the right to collateral security which has already been extinguished, or seek a declaration of consent against the present owner (see Supreme Court Decision 98Da27197, Oct. 2, 198). Thus, in light of the legal principles as seen earlier, since the registration of establishment of the right to collateral security was cancelled, each of the above claims against Defendant 1, 200.

C. Determination on the claim against Defendant ○○○

(1) The plaintiffs asserted that, without their consent, the registered cancellation of the right to collateral security in the name of the plaintiffs was cancelled on the basis of the forged registration of collateral security in the name of the plaintiffs, and that the above defendant requested the above defendant to express his/her consent to the registration of restoration of the right to collateral security in the instant case. Accordingly, the above defendant cannot respond to

D. However, in relation to the claim against the defendant ○○○○○, who was the plaintiff ○○○ and the defendant ○○○○, there is no evidence to acknowledge that the registration of cancellation of the registration of the establishment of the establishment of the nearest collective investment scheme of this case was made based on the forged application for registration, as alleged by the plaintiff ○○,○○○○, and○○○○○, and rather, the above plaintiffs agreed to cancel the registration of the establishment of the mortgage of this case, because the above plaintiffs were at the end of the defendant ○○, who would cancel the registration of the establishment of the establishment of the collective investment scheme of this case, and therefore, the above assertion is without merit, and since the expression of intent to cancel the registration of the establishment of the collective investment scheme of this case, which was the cause of the registration of the cancellation, was cancelled by deception, and thus, even if the above plaintiffs' assertion was made, it is difficult to view that the third party had a duty to accept the registration of the establishment of the establishment of the collective investment scheme of this case as the person entitled to the registration.

Next, in relation to the claim against Defendant ○○○○○, according to the above facts of recognition, the registration of cancellation of the right to collateral security with respect to Plaintiff ○○○○○○’s shares out of the registration of establishment of a neighboring mortgage in the instant case is unlawful since it was made based on the application for cancellation of the right to collateral security with respect to Plaintiff ○○○○○○○’s shares forged by Defendant ○○○○○, etc., and Defendant ○○○ constitutes a third party with a interest in the registration as a mortgagee after the registration of cancellation of the right to collateral security in the instant case was completed. Thus, Defendant ○○○ was liable to perform the procedure for recovery registration with respect to the shares equivalent to Plaintiff ○○○○○○’s shares out of the registration of establishment of a neighboring mortgage in the instant case cancelled to Plaintiff ○○○○○, and the entire shares of the mortgagee, including the remaining Plaintiffs, were sought for the execution of the procedure, but there is no ground to seek this).

3. Conclusion

Therefore, the plaintiffs' claims against the defendant ○○○○, ○○, ○○, ○○○, and ○○○○○○ are accepted on the ground of its reasoning. The plaintiffs' claims against the defendant ○○○○○○○, ○○○, ○○○, ○○○, ○○○, ○○, and ○○○○○, and ○○○○○, on the ground of its reasoning within the scope of the above recognition, and the remainder of claims are dismissed on the ground of its ground. It is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiffs' claims against the defendant ○○○○, ○○,