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(영문) 대전지방법원 2015.04.17 2013나14901

근저당권말소

Text

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. Basic facts

A. On August 28, 2009, the Defendant entered into a credit transaction agreement with the Plaintiff (hereinafter “the instant credit transaction agreement”) with the following terms and conditions.

- Details of credit transaction agreement - Credit (credit type): General loan (credit loan) amount: 400 million won starting date of credit extension / expiration date of the credit period: Interest rate on September 1, 2009 / 2009 : A change in interest rate on September 1, 2012 (Selection of Article 3 (2) 2 of the Framework Agreement on Credit Transactions): Minimum 15% per annum or highest 21% per annum (Article 5 (5) of the Credit Transaction Agreement).

B. On August 28, 2009, the Plaintiff concluded a mortgage agreement with the Defendant to secure the Plaintiff’s obligation to lend a loan to the Defendant based on the instant credit transaction agreement (hereinafter “mortgage agreement”) with a maximum debt amount of KRW 520 million regarding each of the instant real estate owned by the Plaintiff. On the same day, the Plaintiff completed the registration of establishment of a mortgage in the name of the Defendant on the ground of the instant mortgage contract.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 2 and 7, the purport of the whole pleadings

2. Judgment on the defendant's main defense of safety

A. In order for the Plaintiff, the non-corporate group of the Defendant’s main defense defense, to seek the cancellation of the registration of the establishment of the creation of the creation of the creation of the instant neighboring real property completed each of the instant real property, the instant lawsuit is unlawful, without going through the general meeting’s resolution.

B. The provisions of Article 265 of the Civil Act concerning the preservation of property jointly owned cannot be applied to the preservation of property jointly owned. Since the resolution of a general meeting of members pursuant to Article 276(1) of the Civil Act or the articles of incorporation shall be followed pursuant to the articles of incorporation. Thus, even where a church which is not a juristic person files a lawsuit as an act of preserving property jointly owned by an association which is not a juristic person, the resolution of the general meeting of members shall