Law Firm C&A (Law Firm C&A)

[Defendant-Appellee] Plaintiff 1 and 3 others

Defendant 3’s appeal is dismissed.

Of the costs of appeal, Defendant 3’s portion of the costs of appeal shall be borne by Defendant 3.

1. As to the grounds of appeal by Defendant 1 and Defendant 2

A. The lower court determined that even based on the assertion by Defendant 1 and Defendant 2, the registration of the instant collateral security (hereinafter “registration of the instant collateral security”) was to secure the instant claim against Nonparty 1’s non-party 2 (hereinafter “the instant secured claim”), and that the instant registration of the instant collateral security and the instant secured claim are different from the subject of the instant secured claim, on the ground that there is no evidence to acknowledge that the instant secured claim was actually reverted to Defendant 1 and Defendant 2.

B. However, it is difficult to accept the judgment of the court below for the following reasons. 1) The determination of the court below is merely a matter of fact recognition, not a matter of fact recognition, but a matter of interpretation of intent. Therefore, the legal meaning of the act is the relation between the creditor and the mortgagee, the motive for establishing the right to collateral security and the motive for establishing the right to collateral security.

In full view of the circumstances, the parties’ genuine intent and purpose, etc., and the reasonable interpretation ought to be made in accordance with logical and empirical rules (see, e.g., Supreme Court Decision 2014Da32007, Nov. 27, 2014). In cases where the mortgagee of a mortgage on the registration of creation of a mortgage is able to obtain a debt effective with another person and the debtor is able to obtain a debt effective from the debtor, and the debtor is also able to obtain a debt effective from any other person, and where it can be deemed that the former creditor and the debtor are in an indivisible relationship with the creditor, such establishment registration of a mortgage is also valid (see, e.g., Supreme Court Decision 9Da48948, Mar. 15, 201).

2) According to the reasoning of the original judgment and the evidence duly admitted, Nonparty 1 and Nonparty 2 asserted by Defendant 2 are the mother of Defendant 1 and Defendant 2, and Nonparty 2 is the husband of Nonparty 3, who is the owner of each real estate of this case, as Nonparty 1’s partner. However, Nonparty 2 was present as a witness of Nonparty 1, and he borrowed money from Nonparty 1, and he was liable for the debt due to the settlement of each of the instant real estate on behalf of Nonparty 1, etc., upon Nonparty 1’s request, Nonparty 2 testified that the mortgage of this case was established on each of the instant real estate with the consent of Nonparty 3. The testimony of Nonparty 2 conforms to each of the evidence submitted by Defendant 1 and Defendant 2 until the original judgment (registration certificate, the prosecutor’s protocol of statement, the notice of assignment of claims, the notice of provisional seizure, and the content and the certificate of an application for provisional seizure).

C) Meanwhile, the registration of the instant right to collateral security has been terminated from 2001 to 2006. In light of the fact that Nonparty 1, who was the first half of 60, Defendant 1, and Defendant 2, were the age of the second half of 30, it is difficult to avoid the possibility that the registration of the instant right to collateral security was completed with the names of children in order to clarify the legal relationship between the inheritance, etc. which is in fact in the last half of 1. D) Nonparty 3, the owner of each of the instant real estate, also appears to have completed the registration of the instant right to collateral security in the name of Defendant 1, Defendant 2, and Nonparty 1, Nonparty 2, who was aware of all of the financial transaction circumstances and contents, and thereafter, it appears that the registration of the instant right to collateral security was completed in the name of Nonparty 1, Nonparty 2, Defendant 3, and Defendant 2, etc., and there was no special issue or dispute with respect to the relationship between the instant right to collateral security or its relationship with Defendant 1, etc.

Nevertheless, the lower court did not fully examine the assertion or testimony of the parties to such legal relations and the direct interested parties, and held the registration of the instant collateral security as valid.

Inasmuch as there is no evidence as to the circumstances, the court below accepted the Plaintiff’s claim claiming the invalidity of the registration of the instant right as the acting executor of the right. In so doing, the court below erred by misapprehending the legal principles on the validity of the registration of the establishment of a right to collateral security and the interpretation of intent, etc., and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground for appeal assigning this error is with merit.

2. On the grounds of appeal by Defendant 3, the lower court rejected the Defendant’s defense asserting the existence of the secured claim on the grounds that there is insufficient evidence to deem that the secured claim existed at the time of establishment of the right to collateral security. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the burden of proof of the secured claim of the right to collateral security or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, as otherwise alleged in the grounds of appeal.

3. Conclusion

Therefore, the part against Defendants 1 and 2 in the original judgment is reversed, and this part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 3’s appeal is dismissed, and the cost of appeal by Defendant 3 is assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung

Justices Min You-sook of the District Court

Justices Lee Dong-won