beta
(영문) 서울동부지방법원 2015.03.25 2014나21276

근저당권설정등기 말소등기 절차 이행의 소

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 March 15, 2005, the Plaintiff filed a lawsuit against C with the Seoul Western District Court Decision 2004Kadan53268, and received a favorable judgment on March 15, 2005 that “C shall pay to the Plaintiff 44,91,479 won and 443,078,802 won among them, with 18% per annum from June 2003 to February 16, 2005, and 20% per annum from the next day to the day of full payment.” The above judgment became final and conclusive as it is.

B. C completed the registration of creation of a neighboring mortgage (hereinafter “registration of creation of a neighboring mortgage of this case”) with respect to each of the lands and buildings listed in the separate sheet owned by Chuncheon District Court No. 35696, Sept. 17, 2001, based on the contract concluded on September 15, 2001 as to each of the lands and buildings listed in the separate sheet owned by Chuncheon District Court No. 35696, the establishment of a neighboring mortgage of this case (hereinafter “mortgage”).

C. At the time of the closing of argument in the trial, C is in an insolvent state in which the negative property exceeds the active property.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 to 5, Gap evidence 3, the purport of the whole pleadings

2. The parties' assertion and judgment

A. 1) The Plaintiff’s assertion 1) Since the statute of limitations has expired even if there is no secured claim or even if it exists, upon the Plaintiff’s request by subrogation, the Defendant is obligated to perform the procedure for registration of cancellation of the registration of the establishment of the creation of the neighboring mortgage of this case. 2) Upon the Defendant’s assertion, the Defendant’s husband J and C’s husband K separately from each other for several hundred and twenty years. As the management of the company run by K has deteriorated, K requested K to lend money to J. Accordingly, the Defendant lent KRW 120 million to C around December 27, 200 and extended additional KRW 49.8 million around September 15, 2001 to secure the loan claim of KRW 150 million.

In addition, C is above the defendant around October 2010.