근저당권설정등기말소 등
1. On October 14, 2003, with respect to the real estate stated in the attached list to B, the Defendant shall use the machinery, such as gender support, etc. of the Daegu District Court.
1. Facts of recognition;
A. On May 30, 2007, the Plaintiff filed a lawsuit against B seeking the payment of the transfer money, and received a favorable judgment with the purport that “B shall pay to the Plaintiff the amount calculated at the rate of 17% per annum from April 1, 2005 to the date of full payment with respect to KRW 12,787,581 among the KRW 17,154,339 and its KRW 12,787,581,” which became final and conclusive around that time.
B. On October 14, 2003, B completed the registration of creation of a neighboring mortgage as stated in Section 1 of the Disposition No. 1 of this case with respect to the real estate indicated in the separate sheet (hereinafter “the instant real estate”) to the Defendant, who is his wife, on October 14, 2003.
(hereinafter “instant collateral security”). C.
B is in insolvent as of the date of closing argument in the instant case.
[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1-4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings
2. Determination
A. The right to collateral security is a mortgage established by setting 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), and is established with the aim of securing a certain limit at a settlement term in the future. Thus, separate from the act of establishing the right to collateral security, there must be a legal act establishing the right to collateral security, and the burden of proving whether there was a legal act establishing the right to collateral security at the time of establishing the right to collateral security at the time of establishing the right to collateral security exists.
(See Supreme Court Decision 2009Da72070 Decided December 24, 2009, and Supreme Court Decision 2010Da107408 Decided April 28, 201, etc.). As to the instant case, the Defendant asserted that, around 2003, B created the instant right to collateral security by lending the construction cost of KRW 50 million, KRW 30 million operating losses of entertainment bars, KRW 80 million, and KRW 80 million in total, but subparagraph 1 of the instant right to collateral security is the details between the Defendant’s birth and C and D.