[근저당권설정등기말소등기][집10(1)민,239]
Termination of a contract for creation of a right to collateral security without setting duration;
The contract to establish a mortgage cannot be terminated solely on the ground that the mortgagee notified the third party of the exercise of the mortgage.
Sicker, etc. and one other
Jeju Bank, Inc.
Seoul High Court Decision 60Do1332 delivered on July 18, 1961, Seoul High Court Decision 200Da1332 delivered on July 18, 1961
The original judgment shall be reversed.
The case shall be remanded to Seoul High Court.
The grounds of appeal by the defendant's agent are as shown in the attached Table.
The Second Ground of Appeal
Since the original judgment notified the plaintiffs who were the third acquisitor of the real estate in this case of the execution of the mortgage, it cannot be recognized that the period for the establishment of the mortgage contract has been set at all times as the contract was terminated, the mortgagee of the mortgage can freely terminate the contract by expressing to the other party the intention of termination. However, unless there is any special reason, it cannot be recognized that the contract for the establishment of the mortgage has been terminated without the execution of the mortgage. However, the original judgment recognized the termination of the contract for the establishment of the mortgage and decided that the debt incurred after the due date of repayment in the notice of the execution of the mortgage does not be secured by the original judgment is erroneous in the misapprehension of legal principles as to the termination of the contract for the establishment of the mortgage, which affected the conclusion of the original judgment, and therefore, it is not reasonable to see the original judgment without further proceeding.
Therefore, by applying Article 406 of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating Justices.
Justices of the Supreme Court (Presiding Judge) Na-ho (Presiding Judge)