피담보채권의 성립이 증명되지 않은 근저당권의 경우 근저당권부채권의 압류채권자는 그 말소등기에 대한 승낙의무 있음[국패]
In the case of a right to collateral security for which the establishment of a secured claim is not proved, an execution creditor of a right to collateral security has a duty to consent to the registration
At the time of establishment of the right to collateral security, the burden of proving whether there was a legal act establishing the right to collateral security has been asserted the existence of the right to collateral security, and as long as there is no assertion and evidence on the existence and scope of the right to collateral security, the right to collateral security should be cancelled, and the execution creditor of the right to collateral security has the obligation to accept the registration
2014da34095 Registration of cancellation of the right to collateral security.
CHAPTER*
Republic of Korea and 1
May 13, 2015
June 10, 2015
1. The Plaintiff:
A. Defendant AA Co., Ltd carries out the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed on January 23, 2008 by receipt No. 4389, with respect to the real estate listed in the separate sheet.
B. Defendant Republic of Korea expressed its intention of acceptance on the registration of cancellation of the registration of the establishment of a neighboring mortgage as stated in the above A.
2. The costs of lawsuit are assessed against the Defendants.
Cheong-gu Office
The same shall apply to the order.
1. Presumed factual basis
A. On January 23, 2008, Defendant AA Co., Ltd. (hereinafter referred to as “Defendant AA”) completed on January 23, 2008 the registration of creation of a mortgage (the maximum amount of claims KRW 28,700,000 and the debtor).
B. On June 21, 2012, Defendant Republic of Korea (○○ Tax Office) seized the above-mortgaged mortgage claims, and on June 28, 2012, the registration of seizure was completed in the future of Defendant Republic of Korea.
[Recognizing the absence of dispute, evidence A 2
2. Determination
A. The plaintiff asserts that, after Defendant AA worked as the team leader at the construction site, the relevant team members were paid monthly wages to the new* (her husband of the plaintiff) and that, if the team members were not entitled to receive such wages from new*, the aforementioned collateral was established and provided to Defendant AA to secure damages incurred to the defendant A., and thereafter, the new* was completed without any particular problem, such as unpaid wages.
B. A mortgage is a mortgage established by setting only the maximum amount of the debt to be secured and reserving the determination of an obligation in the future. Since it is established with a view to securing a certain limit from a settlement term for the future several unspecified claims arising from a continuous transaction, there must be a legal act establishing a secured claim of the right to collateral separate from the act of establishing the right to collateral, and the burden of proving the existence of a legal act establishing a secured claim of the right to collateral at the time of the establishment of the right to collateral (see, e.g., Supreme Court Decision 2009Da72070, Dec. 24, 2009).
The Defendants are unable to assert and prove any assertion as to the existence and scope of the above collateral security claim. Accordingly, the Plaintiff, the Defendant, and the Defendant, while the Defendant, must cancel the registration of establishment of the above collateral security, and the Defendant, the Republic of Korea, must express their intention to accept the registration of cancellation.