2. The costs of lawsuit shall be borne by the Plaintiff.

that there is no absence.

A. On June 20, 2005, the Defendant loaned the Plaintiff’s husband’s KRW 500,00,000, and KRW 500,000,000 on July 19, 2005, KRW 100,000,000 on October 19, 2005, and KRW 50,000 on October 19, 2005, KRW 1,150,000 on October 25, 2005, and KRW 1,150,000 on the aggregate of KRW 50,00,00 on October 25, 205, and KRW 0 on December 20, 2005.

B. On November 21, 2006, the Defendant and C agreed that the Defendant completed the registration of the establishment of the real estate (hereinafter referred to as the “real estate of this case”) listed in the attached list owned by the Plaintiff as collateral on the following occasions: (a) KRW 1,350,00,000, out of KRW 200,000,000, including interest, etc.; and (b) KRW 1,200,000,000, out of KRW 150,000,000, out of the total amount of KRW 1,20,000,000 shall be paid immediately in cash; and (b) the remaining amount of KRW 1,20,00,000 shall be paid on July 31, 207 (hereinafter referred to as the “instant contract deposit obligation”); and (c) the Defendant shall complete the registration of the establishment of the mortgage on the real estate (hereinafter referred to as the “real estate of this case”).

C. According to the agreement on November 21, 2006, the Defendant received KRW 150,00,000 from C in cash, and completed the registration of establishment of a collateral security (hereinafter referred to as the “mortgage security of this case”) with respect to the instant real property on the ground of a self-contract on November 22, 2006, with respect to the instant real property, the maximum debt amount was KRW 1,200,000,000, and the debtor and the mortgagee as the Defendant.

D. The defendant filed a civil lawsuit against C with the Busan District Court Decision 2007Gahap394, which sought payment of the agreed amount of KRW 1,200,000,000, and damages for delay thereof from the same court, and on December 6, 2007, "C shall pay 5% per annum from August 1, 2007 to October 11, 2007, and 20% per annum from the next day to the date of full payment." The above judgment was finalized on January 1, 2008.

E. Meanwhile, the Defendant filed a civil lawsuit against the Plaintiff on the ground that the Plaintiff jointly assumed the obligation under the foregoing Section B against the Defendant as Busan District Court Branch Branch 2014Gahap139, but the said court dismissed the Defendant’s claim on June 26, 2014. Accordingly, the Defendant appealed with Busan High Court Decision 2014Na4583, but the Busan High Court dismissed the Defendant’s appeal on January 14, 2015, and the said judgment became final and conclusive on February 3, 2015.

F. Meanwhile, the Plaintiff filed a civil lawsuit against the Defendant against the Busan District Court Branch 2015Kadan6151 and 2015Kadan6168, which claimed the cancellation registration procedure for the registration of the establishment of the mortgage of the instant case that the Defendant was named as “Plaintiff” as stated in the foregoing paragraph C, but the same court filed a civil lawsuit against the Defendant for the implementation of the registration procedure for the cancellation of the establishment of the mortgage of the instant case.

6. Each judgment was rendered on September 3, 2015 to the effect that the registration of creation of a neighboring mortgage of the instant case was valid as the debt guaranteed by C, the actual debtor, and each of the said judgments became final and conclusive on September 3, 2015.

G. C did not pay KRW 1,200,000 according to the agreement stated in the foregoing Paragraph (b), and the Defendant applied for the auction of the real estate in Busan District Court D and the Busan District Court Dong Branch E, based on the right to collateral security established on the instant real estate. The foregoing Busan District Court rendered a voluntary decision to commence the auction of the real estate in accordance with Paragraph (1) of the attached Table on March 23, 2015.

H. 1) On the other hand, the procedure for the auction of D's real estate on April 7, 2016, the Busan District Court D's above Busan District Court's 2 and 3 real estate stated in the separate sheet was decided to permit the sale on April 7, 2016, and the F's highest bidder paid the sale price on April 27, 2016, and was completed on May 31, 2016, and the distribution was completed on May 31, 2016. Furthermore, the procedure for the auction of the real estate E's real estate located in paragraph 1 of the separate sheet was decided to permit the sale on August 2, 2016, by G, the highest purchaser of which was the reporter on August 24, 2016, and was designated as the date of distribution on September 21, 2016.

2. Determination as to the legitimacy of the instant lawsuit

A. The Plaintiff’s assertion 1) The Plaintiff is merely a surety to secure C’s obligation to Defendant 1,200,000,000 won, and is not a debtor against the Defendant.

2) The defendant asserted that "in applying for voluntary auction of the real estate of this case as stated in the above 1.1., the plaintiff set the payment period of KRW 600,000,000 as of November 22, 2006 and lent it to the plaintiff on July 31, 2007."

3) However, since the Plaintiff borrowed KRW 600,00,000 from the Defendant on November 22, 2006 from the Defendant, the Plaintiff’s application for auction against the instant real estate on the ground that the Defendant had a loan to the Plaintiff on the ground that the Plaintiff had a loan to the Plaintiff, separate from holding the Defendant liable as a surety’s surety, is unlawful. 4) Accordingly, there is a benefit to seek confirmation against the Defendant that there is no obligation of the Plaintiff under a monetary loan agreement of KRW 600,00,000 against the Defendant.

B. Defendant’s assertion 1) The registration of the establishment of the creation of the neighboring mortgage of the instant case was completed to secure C’s obligation to the Defendant, and the Defendant is not a creditor against the Plaintiff.

2) However, since there was an agreement between the Plaintiff and the Defendant to secure the Defendant’s obligation to the Defendant at the time of the registration of the establishment of the collateral, the Defendant held the Plaintiff liable to the surety’s obligation to obtain the satisfaction of the claim against C, and filed an application for auction of the instant real estate.

C. Determination

1) A lawsuit seeking confirmation is permissible when the plaintiff's right or legal status is in danger and obtaining a confirmation judgment is the most effective and appropriate means to resolve the dispute. In addition, when the person who created the right to collateral security seeks to confirm that there is no obligation to be secured based on the right to collateral security contract and seeks to cancel the registration of the establishment of the right to collateral security, seeking confirmation of the establishment of the right to collateral security on the ground that there is no obligation to be secured, would be a direct means to resolve the dispute effectively and appropriately. Thus, it cannot be said that there is a benefit of confirmation to seek confirmation that there is no obligation to be secured based on the right to collateral security contract separately (see Supreme Court Decision 2000Da5640, Apr. 11, 200, etc.) between the plaintiff and the defendant and the defendant, there is no dispute over the fact that the establishment of the right to collateral security of this case was completed to secure the obligation of the defendant against the plaintiff of the defendant of November 22, 2006, and there is no claim against the plaintiff of the defendant.

On the other hand, the Plaintiff filed a lawsuit seeking the implementation of the procedure for cancelling the registration of the establishment of a mortgage in the vicinity of the instant case and received a favorable judgment in favor of the Plaintiff, but still becomes an effective and appropriate means to eliminate the Plaintiff’s legal status arising from the continuation of the registration of the establishment of a mortgage in the vicinity of the instant case. However, as stated in the foregoing paragraph, the Plaintiff filed a civil lawsuit against the Defendant on the ground that the Plaintiff did not have a secured obligation under the Busan District Court’s 2015Kadan6151 and 2015Kadan6168, but was sentenced by the same court on August 6, 2015, that the registration of the establishment of a mortgage in the instant case was valid as a secured obligation against the Defendant, the actual debtor, and that the said judgment became final and conclusive on September 3, 2015.

Therefore, even if the defendant is the entity that the registration of creation of a neighboring mortgage of this case was made in order to secure C's obligation to the defendant, the plaintiff cannot be the direct means to resolve the dispute effectively and appropriately (Article 59 of the Civil Execution Rule) even if the plaintiff is awarded a favorable judgment on the claim for the confirmation of existence of the debt of this case (Article 59 of the Civil Execution Rule). The "debtor" of the Civil Execution Rule means only the person who is treated as the debtor during the compulsory auction procedure, and even if the plaintiff is subject to a quoted judgment in the lawsuit of this case, the plaintiff is still recorded

The plaintiff's assertion that there is a benefit in confirmation as a debtor cannot file an application for purchase is without merit.

3. Conclusion

Therefore, the plaintiff's lawsuit of this case is unlawful as there is no benefit of lawsuit, and it is so decided as per Disposition.

Judges 00 00

Judges No. Rool