양수금
1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. Summary of the parties' assertion
A. On May 27, 201, the Plaintiff acquired a loan claim of KRW 40 million from the Plaintiff D with respect to KRW 2,000,000,000 from the Plaintiff D and the right to collateral security with the secured claim. Since the Plaintiff received some dividends due to the enforcement of the right to collateral security, the Plaintiff is obligated to pay the remaining loan of KRW 17,310,437 to the Plaintiff.
Meanwhile, as B died (hereinafter “the deceased”), the Defendant, who succeeded to the deceased’s property, is obligated to pay the above loans to the Plaintiff.
B. A person who borrowed money from Defendant D is not the deceased, but the defendant, and the deceased is merely a surety's surety, and thus, the plaintiff cannot respond to the plaintiff's claim on the premise of the existence of a loan claim against the deceased.
2. If the purport of the entire argument is added to the evidence Nos. 1 through 3 of the judgment as to the cause of the claim, D entered into a mortgage agreement with the deceased on May 27, 201 with the maximum debt amount of KRW 60 million. The mortgage agreement was concluded between the deceased on May 27, 201, with respect to the land owned by the deceased, the registration of establishment of mortgage was completed over KRW 21,09 square meters (hereinafter referred to as “influent land”) with regard to the mortgagee D, the debtor and the deceased, and the maximum debt amount of KRW 60,000,000,000,000. The Plaintiff was notified on May 23, 2015 of the acquisition of the right to collateral security against the deceased. On the other hand, in the above auction procedure, the Plaintiff received dividends of KRW 22,689,536, and the fact that the Defendant sustained the deceased’s property during the inheritance of the deceased.
However, the right to collateral security is a mortgage created by settling only the maximum amount of the debt to be secured and reserving the determination of the debt in the future (Article 357(1) of the Civil Act).