[근저당권설정등기말소등][집16(3)민,040]
Cases of failure to exhaust all necessary deliberations as to the existence of security interest;
Unless there is any assertion that the owner of a right to collateral security has borne any obligation to the creditor or provided any security for the debtor, and there is no assertion that the period of the credit contract has been fixed, the credit contract may be unilaterally terminated, unless there is any assertion as to the special agreement.
Article 357 of the Civil Act, Article 187 of the Civil Procedure Act
Plaintiff
Defendant 1 and nine others
Seoul High Court Decision 67Na2423 decided June 19, 1968
We reverse the original judgment.
The case is remanded to Seoul High Court.
The Plaintiff’s attorney’s ground of appeal is examined.
According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for cancellation of the registration of the right to collateral security upon the termination of the Plaintiff’s credit contract only if the Plaintiff’s mother and the Defendants were to take over the obligation against the Defendants on March 30, 1966, and the Nonparty was to take over the obligation of KRW 1.7 million against the Defendants on behalf of the Plaintiff. On May 23, 1966, the Nonparty concluded a mortgage contract with the mortgagee on behalf of the Plaintiff as to the instant real estate on the same day and completed the registration of the establishment of the right to collateral security on the same day. However, unless there is any assertion that the Plaintiff assumed the obligation against the Defendants, that the Plaintiff was liable to the Defendants, that the Plaintiff was liable to the Defendants, or that the Plaintiff provided a security for the Nonparty’s obligation to the Defendants, or that the credit contract between the Plaintiff and the Defendants was unilaterally terminated in this case without any assertion on the existence of the right to collateral security, the lower court did not err by failing to exhaust all necessary deliberations.
Therefore, the judgment below is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Judge Do-dong (Presiding Judge) of the Supreme Court