근저당권의 피담보채권 소멸시 근저당권 말소의무 여부[국패]
Whether the obligation to cancel the right to collateral security upon termination of the claim;
If there is no assertion or proof of the debtor's claim on the due date of payment of the secured claim, the secured claim of the right to collateral has an obligation to cancel the above secured claim if the ten-year extinctive prescription has expired from the date of establishing the right to collateral, which is presumed to have
Registration of Real Estate Act (Cancellation of Registration with Interested Third Parties) Article 57
District Court 2018Kadan1022
Korea
AA
December 14, 2018
January 11, 2019
1. The Plaintiff:
A. Defendant BB implements the procedure for registration of cancellation of the establishment registration of the establishment of a neighboring mortgage completed under No. 4848 of April 24, 1996 with respect to the real estate listed in the separate sheet;
B. The defendant Republic of Korea expressed his/her intention to accept the registration of cancellation of the establishment registration of the neighboring mortgage mentioned in paragraph (1).
2. Of the litigation costs, the part arising between the Plaintiff and Defendant BB is borne by Defendant BB, and the part arising between the Plaintiff and the Defendant and the Defendant Republic of Korea is borne by each party.
Cheong-gu Office
The same shall apply to the order.
1. Determination
A. According to the evidence evidence No. 1, as to the real estate stated in the separate sheet, the ownership transfer registration was completed under the name of the Plaintiff on November 24, 1995, and the ownership transfer registration was completed under the name of the Plaintiff East CCC on October 13, 2001. On April 23, 1996, the establishment registration was completed on April 24, 1996 due to the collateral security contract concluded on April 24, 1996 (No. 4848) with the obligee BB, the obligor, the Plaintiff, and the maximum debt amount (No. 4848), the Defendant Republic of Korea seized the above collateral security claim on August 25, 2016 and completed the additional registration on August 30, 2016.
B. On the other hand, in the instant case where the Plaintiff asserted that the said secured claim was repaid or extinguished by prescription, Defendant BB had no assertion or proof to prove the establishment and scope of the secured claim first, and it cannot be deemed that the secured claim is presumed as the existence of the secured claim.
In addition, it is reasonable to view that, in the event that the party who takes advantage of the existence of the period of repayment does not assert or prove the period of repayment, the claim shall be deemed a claim without setting the period and the extinctive prescription shall proceed from the time of its establishment.
Therefore, the secured claim of the above right to collateral security has expired on April 23, 1996, which was the date of establishing the right to collateral security, which was presumed to be the date of establishment of the right to collateral security contract, since April 23, 1996, and the extinctive prescription on April 23, 2006.
C. Therefore, Defendant BB is obligated to cancel the above mortgage to the Plaintiff as a party to the above mortgage contract, and Defendant BB is obligated to express his/her consent to the above cancellation registration as a third party having interests in the registration.
2. Conclusion
Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning and it is so decided as per Disposition (However, in light of the circumstances of this case, the litigation cost incurred between the plaintiff and the defendant Republic of Korea shall be borne individually).