서울북부지방법원 2014.11.12 2014가합20770

근저당설정등기말소 청구의 소


1. The plaintiff's claim is dismissed.

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


1. Basic facts

A. On May 8, 2012, the Plaintiff agreed from the Defendant to purchase each of the real estate listed in the separate sheet (hereinafter “instant land”) and the buildings not completed on the ground, and all of the container and joints on the construction site, with a total of KRW 130,000,000 for the instant land, and KRW 325,00,000 for the expenses incurred in the construction not completed on the ground, and KRW 325,000 for the purchase price.

(hereinafter “instant sales contract”). Accordingly, on May 11, 2012, the Plaintiff received the registration of ownership transfer for the instant land from the Defendant.

B. After that, in order to settle the sales price under the instant sales contract, the Defendant determined the amount and payment method of the sales price settled on January 16, 2013, and KRW 210,000,000 out of the settled sales price, and the remainder was paid in cash to the Defendant as a substitute for the building 104, 304, and 303 to be newly constructed on the instant land.

C. On January 25, 2013, in order to secure the obligation to pay the above purchase price, the Plaintiff is entitled to each of the instant collateral security rights (hereinafter referred to as “each of the instant collateral security rights”) with regard to the instant land, as indicated in the purport of the joint security claim against the Plaintiff, the mortgagee, and the mortgagee of the instant land, including the purport of the claim as joint security.

Upon completion of the proceedings. [The facts that there is no dispute over the basis for recognition, Gap evidence Nos. 1, 3, Eul evidence No. 2, and the purport of the whole pleadings.]

2. The purport of the Plaintiff’s assertion was to secure the obligation of intermediate payment 200 million won under the instant sales contract. The registration of creation of a mortgage of each of the instant case was to extinguish the obligation of each of the instant mortgages by repaying the sum of KRW 30,000,000 paid by the Plaintiff to the Defendant, KRW 5,000,000 paid to the Defendant, KRW 85,000,000 paid to C, and KRW 31,00,000,000, which was deposited by the Defendant refused to receive and deposited. The registration of creation of a mortgage of each of the instant case should be cancelled.

3. Determination A.