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(영문) 대법원 2014.06.26 2012다84585

근저당권말소

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The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

Reasons

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment with respect to the secured obligation of each of the instant mortgages, the lower court determined on January 12, 2010 that the Plaintiff’s mother borrowed KRW 50 million from the Defendants each of the instant loans (hereinafter “each of the instant loans”) and paid 3% interest on each of the instant loans, and that if the said interest is not paid, the Plaintiff would pay damages for delay at the rate of 4% per month for each of the instant loans; and that the Plaintiff completed the establishment registration of each of the instant mortgages on the same day; and that each of the instant mortgages was determined to the effect that the secured obligation of each of the instant mortgages was the principal and interest obligation of the instant loans against the Defendants.

Examining the record, the judgment of the court below on this part is just, and there is no error of law by misunderstanding the legal principles as to the constructive power of registration beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

2. As to the validity of H’s mortgage cancellation agreement with H, this part of the ground of appeal is with merit, and it is acknowledged that “H made a promise to cancel the registration of establishment of a mortgage on January 12, 2010 when H paid all the deposit amounts, but each of the instant collateral security holders of the instant case is not H, but the Defendants, and the secured obligation is a loan obligation against D, and even if H made the said promise with D and paid all the deposit amounts in accordance with the said promise, the effect of the said promise does not naturally affect the Defendants. Thus, unless there is any assertion as to the effect of H’s above promise, the Plaintiff’s above assertion is without merit, and “H is determined only as it is without merit,” and “H is paid only KRW 103,00,000,000,000,000,000,000,000,000 won.”